McGILL LAW JOURNAL
Volume 12
Montreal
1966
Number 1
The Ombudsman in Denmark
by Walter Gellhorn *
In 1955 Denmark’s first Ombudsman –
the Folketingets ombuds-
mand, or Parliamentary Commissioner, to give him his proper title
took office and began to function. This was 146 years after a
–
similar activity had commenced in Sweden and 36 years after a Fin-
nish version had appeared. For most of the world, however, interest
in the ideas behind the ombudsman institution was all but non-
existent until Denmark’s Ombudsman came on the scene. Then,
suddenly, the institution began to attract attention not only in the
western world, but also in Asia and Oceania.
This spate of interest may be attributed in part to the enthu-
Professor
siasm with which the Danish Ombudsman himself –
Stephan Hurwitz I –
has described his work and its fruits. Mindful
from the first that his own countrymen were insufficiently aware of
the powers and possibilities of his newly created office, Professor
* Betts Professor of Law, Columbia University. Copyright 1966 by Walter
Gelhorn, subject to the right of the McGill Law Journal to reprint and use.
The substance of this article will appear in a volume to be published by the
Harvard University Press in 1966.
1 Professor Hurwitz was the Professor of Criminal Law at the University of
Copenhagen when elected to be the Ombudsman. A member of a highly re-
garded family, he had long been prominent in public and cultural affairs, though
without political identification. Newspapers had often sought his views con-
cerning matters of current moment and he had written influential articles for
popular consumption. He had been recognized as an energetic and resourceful
leader of Danish 6migrgs during Germany’s occupation of Denmark in the 1940’s.
His professional advice was widely sought by business interests, public authori-
ties, and reformist groups. He was identified with all manner of socially useful
activities. He was, in short, a well know “community figure” long before he
became Ombudsman.
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[Vol. 12
Hurwitz energetically engaged in a campaign of public education in
his homeland.2 Early successes as a lecturer abroad created a lively
demand for appearances by Professor Hurwitz in distant places.
Responding to that demand, he widened the range of his expository
and exhortatory efforts, almost as though he were an apostle of a
new faith or, perhaps, the salesman of an export commodity. His
persuasive speeches and writings, 3 well supported by the writings of
other enthusiasts,4 transformed an ancient institution into one seem-
ingly designed specifically to meet current needs.
Speechmaking and writing of articles may explain why persons
in far-off lands know about a Danish governmental activity, but they
do not explain why that activity has aroused such enthusiasm. For
that explanation one must look to the Danish Ombudsman’s actual
accomplishments. These indeed have been substantial. The office has
been a marked success, well deserving the applause given it.
At the same time, foreign enthusiasm has perhaps occasionally
run ahead of the information at hand. The Ombudsman of a country
other than Denmark recently remarked, “The ombudsman institu-
tion is certainly justifying its existence, but it isn’t as great a thing
as some people outside Scandinavia apparently believe. Professor
Hurwitz is a man of magic –
or perhaps I should describe him as a
2 Today, instruction about the Ombudsman has become a routine element of a
required course on Danish institutions given in all primary schools.
3 An interview during a British Broadcasting Corporation program had an
extraordinary impact upon opinion in Britain. It is published as “The Danish
Ombudsman and His Office”, 63 The Listener 835 (1960). Professor Hurwitz’s
writings about his office appear in French, German, and Italian, as well as in
Danish and English. Articles by him in English include Control of the Adminis-
tration in Denmark: The Danish Parliamentary Commissioner for Civil and
Military Government Administration, 1 J. Int. Comm. of Jurists 224 (1958) and
[1958] Public Law 236; Denmark’s Ombudsman, 1961 Wis. L. Rev. 170; The
Folketingets Ombudsman, 12 Parl. Affairs 199 (1959); Public Trust in Govern-
ment Services, 20 Danish Foreign Office J. 11 (1956); The Scandinavian Om-
budsman, 12 Pol. Sci. 121 (1960). A brochure written by him, The Ombudsman:
Denmark’s Parliamentary Commissioner for Civil and Military Administration,
was published in Copenhagen in 1961 by Det Danske Selskab.
4 The leading work in English is B. Christensen, The Danish Ombudsman, 109
U. Pa. L. Rev. 1100 (1961). See also I. M. Pedersen, The Danish Parliamentary
Commissioner in Action, [1959] Public Law 115, and The Parliamentary Com-
missioner: A Danish View, [1962] Public Law 15, as well as the same author’s
Denmark’s Ombudsman in D. C. Rowat ed., The Ombudsman 75 (1965); H.
.
Abraham, A People’s Watchdog Against Abuse of Power, 20 Pub. Admin. Rev.
152 (1960). And see K. C. Davis, Ombudsmen in America, 109 U. Pa. L. Rev.
1057 (1961). Among foreign writings, an especially noteworthy contribution has
been made by J. G. Steenbeek, De Parlementaire Ombudsman (Haarlem, 1964).
No. 1]
THE OMBUDSMAN IN DENMARK
man with magic eyes who has bewitched the world. Because he has
aroused so much admiration, the office he holds has seemed to be
even more significant than it really is. If expectations about what
ombudsmen can accomplish become too greatly inflated, their genuine
achievements may be forgotten when the inflated expectations ex-
plode. For myself, I fear that the ombudsman idea may have been a
bit oversold by those who are enthusiastic about it.”
The present sketch of the Danish Ombudsman’s functioning
attempts to describe briefly what he does and how he does it, and
also to gauge its significance.
Creation of the Office
The Danish Constitution of 1953 empowered the Folketing (Parlia-
ment) to provide by statute for the appointment by it “of one or
two persons who shall not be members of the Folketing to control the
civil and military administration of the State.”
The committee upon whose recommendation this action was
based had stated the objective in view as “the establishment of in-
creased guarantees for the lawful conduct of the government’s civil
and military administration.” Existing guarantees, the Committee
asserted, were widely regarded as insufficient in view of “the extra-
ordinary expansion of the administration” during the past several
decades. Legislative power had been extensively delegated to admin-
istrative authorities, and this in itself “makes it natural that there
be more stringent supervision and that Parliament be allowed better
access than at present to follow the administration’s use of its exten-
sive powers.” To that end the committee thought that “a Parliament-
ary Commissioner arrangement similar to the Swedish prototype”
should be created.
Despite some degree of opposition, spearheaded by civil service
groups and local governments, the committee’s views were adopted.
A 1954 statute created the office of a single Parliamentary Commis-
sioner, to deal with both civil and military administration. 5 While
5 Act No. 203, of June 11, 1954.
The Ombudsman is elected by the Folketing after every general election; but
he may be dismissed whenever he “no longer has the confidence of the Folketing”,
which may then choose a successor (See. 1). While the Folketing lays down
general rules to guide his activities, he is otherwise “independent of the Folketing
in the performance of his duties” (Sec. 3) –
an independence that has been
scrupulously observed. His relationship with the Folketing is maintained through
McGILL LAW JOURNAL
[Vol. 12
not wholly ignoring “the Swedish prototype,” the Danish Parliament
improved upon rather than slavishly copied what had previously exist-
ed in Sweden and Finland.”
Controls over Administration
Before the duties and powers of the newly created Ombudsman
are described, the pre-existing body of legal controls over public
administration may be quickly outlined.
Denmark has a strongly centralized governmental system. Min-
isters exercise ultimate administrative power over the departments
they head. They are politically answerable to (though they themselves
need not be members of) the unicameral parliament, sitting in Copen-
hagen.
Approximately 1400 local governments carry on activities within
the small country. Denmark’s population is roughly the same as
Georgia’s; Georgia’s land mass is more than three times greater
than Denmark’s. Administration is complicated because apart from
the mainland peninsula of Jutland projecting northward from West
Germany, Denmark’s territory is scattered over some five hundred
islands, of which about a hundred are inhabited.
an annual report and through contact with a special seventeen-member committee
which comprises representatives of all major parties seated in the Folketing.
He brings to that committee’s notice his recommendations concerning changes in
existing statutes or regulations, as well as “any mistakes or acts of negligence of
major importance” (Parliamentary Directives, Arts. 11, 12). The Ombudsman has
attended most of the committee’s sessions, by its invitation.
The statute fixes the Ombudsman’s salary at the same level as a Supreme
Court judge’s and makes generous pension provision under a statute applicable
to members of the Cabinet (See. 12). The Ombudsman’s salary is exceeded, in the
public sector, only by those of the President of the Supreme Court, the Permanent
Secretary of the Foreign Ministry, the Postmaster General, and the head of the
state railways. In fact an additional non-statutory allowance has been provided
for the present Ombudsman because the statutory salary would have caused a
steep drop in his income.
Sec. 13 authorizes the Ombudsman to engage and dismiss his own staff, whose
number and salary are to be determined, however, by the Folketing’s Committee
for Procedure. The Committee has thus far wholly accepted the Ombudsman’s
recommendations. The salary scale for the Ombudsman’s assistants approximates
this is
that of the Ministry of Foreign Affairs for its resident officials;
somewhat above the general civil service level.
6 Discussion of the ombudsman systems in those two countries may be found
in W. Gellhorn, The Swedish Justitieombudsman, 75 Yale L. J. 1 (1965), and
Finland’s Official Watchmen, 114 U. Pa. L. Rev. 327 (1965).
No. 1]
THE OMBUDSMAN IN DENMARK
The work of the towns and rural districts is largely financed by the
central government, whose statutes and regulations have established
minimum standards for local authorities’ direction of education, hospi-
tal, library, and social welfare activities. The central government di-
rectly provides the courts, the police and the main highway network.
Public utilities such as waterworks, electric power, and gasworks as
well as some public transport are usually owned and operated by local
authorities, singly or in a cooperative organization. Local governm-
ments also have responsibility for town-planning with its attendant
restrictions on land use. Population movements during the present
century have made some of the old boundary lines meaningless (as
has been true in most western countries). Considerable effort has
been made, through voluntary cooperation, to achieve a functionally
necessary regionalism or metropolitanism in place of the parochialism
of the past, but local pride and vested interests have thus far prevent-
ed large-scale rationalization of administration. Supervision of the
budgets, expenditures, borrowings, and decisions of municipal govern-
ments is exercised in general by the Ministry of the Interior. County
(or provincial) governments similarly supervise the rural district
councils. The provincial administrations are in turn answerable to
the Ministry of the Interior.
Few national administrative determinations are immune from
being appealed within the administration itself. The power of initial
review is lodged in an official superior to the one who made the chal-
lenged decision. Usually the final reviewing officer is, nominally,
the Minister himself. A few independent adjudicatory bodies –
such
as the Tax Court and the Disablement Insurance Tribunal –
have
been created, but for the most part an appeal is handled simply as an
element of administration, just as was the original decision from
which an appeal has been taken.
Until 1964 administrators were almost entirely free from statut-
ory prescriptions of procedure. Then an Administrative Procedure
Act 7 for the first time required that parties to an administrative
proceeding, either local or national, be fully informed of the docu-
mentary materials and evidence bearing upon the case and that they
be afforded an opportunity to comment orally or in writing before a
decision is made.
Judicial review is available in the ordinary courts. Denmark,
unlike Sweden and Finland, has no special administrative courts. A
party aggrieved by a final administrative decision may sue for its
annulment or modification. If monetarily injured, he may seek to
7 Act No. 141, May 13, 1964, effective October 1, 1964.
McGILL LAW JOURNAL
[Vol. 12
recover damages from the State. An official who has assertedly
abused his powers may be prosecuted before the courts, which also
have power to pass upon the propriety of disciplinary sanctions in-
cluding removal from office.
While the scope of Danish judicial review seems at first glance to
be broad,” it is in fact somewhat limited. When considering exercises
of discretion, Danish courts ordinarily confine themselves to questions
of ultra vires. So long as the administrator has jurisdiction over the
subject matter and has not been shown to have been improperly
motivated, the courts cannot candidly inquire whether he exercised
his discretion arbitrarily.9
Furthermore, non-action seems not to concern the courts; they
will not, for example, order an administrator to make a determination
even when he has been unreasonably slow in acting upon a matter
before him. The courts themselves act slowly on appeals from admin-
istrative orders, and their proceedings are rather costly, so that close
questions may be abandoned rather than put to the test.
All these factors have discouraged recourse to litigation, which
has been small in proportion to the volume of administrative decisions
that, in theory, are judicially reviewable. “Where it operates,” a
prominent scholar has written, “the control of the courts is excel-
lent; its operation, however, is sporadic.” 10
The Ombudsman’s Duties and Powers
Persons within the Ombudsman’s jurisdiction. The 1954 statute
that created the Ombudsman confined him to supervising “civil and
military central government administration” exclusive of the courts.
His jurisdiction extended to “ministers, civil servants and all other
persons acting in the service of the State” except those engaged in
judicial administration.” Those who act “in the service of the State”
include not only officials who control or command, but all those who
are on the national payroll, such as university professors, museum
curators, clergymen, and ballet directors (all of whom have been
principals in cases acted upon by the Ombudsman). The civil em-
ployees of the national government in Denmark number only slightly
more than a hundred thousand altogether, including the many office,
8 The Danish Constitution, Sec. 63, empowers courts to determine all questions
concerning the limits of power conferred upon a public authority.
9 The 1953 Constitution explicitly broadened the scope of review in cases in-
volving the valuation of private property taken for public purposes.
11 Act No. 203, of June 11, 1954, See. 4.
10 Christensen, op. cit., supra, note 4, at 1103.
No. 1]
THE OMBUDSMAN IN DENMARK
maintenance, and manual workers who are unlikely to have any
contact with the public at large.
The Ombudsman’s jurisdiction was broadened to embrace, com-
mencing in 1962, local officials as well when acting “in matters for
which recourse may be had to a central government authority.” 12 The
activities of elective bodies (“local government councils”) remained
beyond the Ombudsman’s reach ordinarily, though he was empower-
ed to “take up a case for investigation on his own initiative,” even
if it grew out of a collective action of a local council, ‘provided that
the case involves a violation of material legal interests.” The statute
cautioned the Ombudsman to “take into account the special condi-
tions under which local governments operate,” thus reflecting resi-
dual support of the concept of local autonomy.
In terms of power, the Ombudsman today could perhaps, if he
chose, deal with virtually every high level or low level exercise of
governmental authority outside the courts. In terms of political tact,
he appears to proceed very gingerly when dealing with local affairs.
Municipal governments’ hot opposition to extending the Ombudsman’s
authority caused Parliament to enact a somewhat confused statute,
conferring power more grudgingly than the Ombudsman himself had
urged.13 In the circumstances, he has seemingly not been disposed to
test the outermost limits of his authority. 4 Spokesmen for an organ-
ization of local governments declared during an interview in 1964,
however, that opposition to the Ombudsman’s supervision of local
activities has now all but vanished.
12 Act No. 142, of May 17, 1961. As to the local government situation in Den-
mark, see P. Meyer, The Development of Public Administration in the Scandina-
vian Countries Since 1945, 26 Int. Rev. Admin. Sciences 135, 145 (1960).
1′ See S. Hurwitz, Scandinavian Ombudsman, 12 Pol. Sci. 121, 123
(1960),
noting that national and local authorities often work together (as, for example,
in tax matters) and, even when working separately, engage in similar activities.
Citizens cannot understand, the Ombudsman argued, why he should be able to
deal with a complaint against the administration of, say, a school or hospital
operated by a national authority, while a precisely similar complaint against a
locally-administered school or hospital should be beyond his reach. Since in the
end he could not order anyone to do anything, but could only make recommenda-
tions, the Ombudsman did not see how his “subsequent control may constitute an
interference with local autonomy”. So he advocated a flat grant of power to look
into governmental activities at all levels.
14 Taxes, schools, and public assistance programs are examples of local mat-
ters “for which recourse may be had to a central government authority”,
and therefore clearly lie within the Ombudsman’s jurisdiction. The condition of
town streets and sidewalks, the setting of wage rates for local authorities’ em-
ployees, and the direction of municipally owned public utilities are examples of
matters dealt with entirely locally and, therefore, probably not suitable for the
Ombudsman’s attention under the statute as now drawn.
McGILL LAW JOURNAL
[Vol. 12
As indicated above, the Danish Ombudsman has no power to deal
with judicial administration. This exception is a major departure
from “the Swedish prototype,” for much of the Swedish Ombuds-
man’s energies are devoted to policing the judiciary. In Denmark com-
plaints about the behavior of judges can be lodged either with the
presidents of the several courts or with a Special Court of Complaints,
founded in 1939. That court has other functions, however, such as
deciding whether closed cases should be reopened because newly dis-
covered evidence or some other development may have undermined the
existing judgment. Apparently the Court of Complaints is little used
by persons who have been offended by judges; the number of com-
plaints received by that body annually is said to be on the order
of six, while court presidents are thought to receive perharps ten
additional complaints that a judge has been unnecessarily sharp-
tongued or dilatory. Few disciplinary decisions have been rendered
by the Court of Complaints. In recent years one judge has been dis-
missed because of a tax delinquency wholly unrelated to his judi-
cial work. Another has been censured for interfering with news-
paper reporters’ efforts to observe proceedings in his court. Many
of the approximately 215 judges in active service have had consider-
able experience in the Ministry of Justice before being appointed
to the bench. Confidence in their probity is universal, so far as
one can gauge the matter on the basis of personal interviews with
all manner of occupational groups. The severest criticisms en-
countered during conversations in 1964 were that one judge “is said
to drink too much, but he is a very clever judge who handles his work
well, anyway” and that “some of the judges in the community courts
other than the City Court of Copenhagen are not very competent
professionally, though all are thoroughly honest.” These comments
were more than offset by flattering appraisals.
The nature of the Ombudsma’s responsibility. The statute and
Parliament’s accompanying “general directives” command the Om-
budsman to inform himself constantly about the manner in which
all officials within his jurisdiction perform their duty.15
15 The statute provides in Sec. 5 that the Ombudsman is to “keep himself
informed” as to whether persons subject to his supervision “commit mistakes or
acts of negligence in the performance of their duties.” Section 3 authorizes the
Parliament to give the Ombudsman general rules to guide his activities. Article 3
of the directives adopted by the Parliament on Feb. 9, 1962, expands the statute
somewhat by saying: “The Parliamentary Comissioner shall keep himself informed
as to whether any person comprised by his jurisdiction pursues unlawful ends,
takes arbitrary or unreasonable decisions or otherwise commits mistakes or acts
of negligence in the discharge of his or her duties …. ”
No. 1]
THE OMBUDSMAN
IN DENMARK
The Ombudsman, it must be stressed, has no statutory power to
change a decision he finds to be improper. He can comment on the
quality of administration, but not directly overturn the results of
poor administration. Later discussion will make clear, however, that
the Ombudsman’s suggestions do frequently have the effect of revers-
ing or modifying determinations he has found to be unsound.
The Ombudsman’s formal powers.
If he believes that miscon-
duct in public service has occurred, the Ombudsman may order the
public prosecutor to investigate further or to commence a criminal
proceeding in the ordinary law courts; 16 or, if he chooses, he may
order that disciplinary proceedings be commenced by the appropriate
authority. In point of fact, he has not once during the eleven years
of his activity ordered either a prosecution or a disciplinary proceed-
ing, though in a few instances he has requested prosecutors to carry
on investigations.17
Chiefly the Ombudsman has acted in the far milder manner con-
templated by Section 9 of the Statute: “In any case, the Parliament-
ary Commissioner may always state his views on the matter to the
person concerned.” 18
At first glance this may seem to be a sword without a sharp
cutting edge. As wielded by the Danish Ombudsman it has proved to
be a potent and versatile weapon. He himself has written that the
power to voice his opinion “enables the Commissioner to exercise a
guiding influence on the administration and provides him with the
legal basis for initiating oral or written negotiations with the min-
1O6While Section 9 of the statute grants the power to order prosecution,
the Parliamentary Directives (Art. 9) place an explicit limitation on the Om-
budsman’s power to proceed against a Cabinet member: “If the Parliamentary
Commissioner, on having made an investigation, finds that a Minister or a
former Minister should be held responsible under civil or criminal law for
his conduct of office, he shall submit a recommendation to that effect to the
Folketing Committee on the Parliamentary Commissioner’s Office.”
17 No such an investigation (the precise number of which has not been ascer-
tained, though they are known to be very few) has eventuated in a prosecution.
Although the Ombudsman has never ordered a disciplinary proceeding, apparently
some have occurred as a consequence of his inquiries and perhaps directly in
response to his suggestion. Reflections of his offering a “suggestion” without
making an “order” appeared in two interviews during 1964. In both instances
subordinate officials were found by their superiors to have been at fault and,
though not dismissed, were told that they would never be promoted to higher posts.
18 The Directives, Art. 9, say essentially the same thing: “Even if the subject
matter of a complaint gives the Parliamentary Commissioner no occasion for
action, he may always state his views on the matter to the person whom the
complaint concerns.”
McGILL LAW JOURNAL
[Vol. 12
isters or the services concerned in order to have decisions which he
considers erroneous corrected or, if this cannot be done, to achieve
revision of the general procedure.” 19
Furthermore, the Ombudsman has not hesitated to express cri-
ticism even when the outcome of a particular case has not been at
stake. A reviewing court must (at least in theory) disregard a
“harmless error.” Not so the Ombudsman, who points out deficiencies
of method, judgment, or personal manners in the hope of discour-
aging their later occurrence. Nor does the Ombudsman confine him-
self to stating his views about what administrators are legally re-
quired to do. Instead, he freely states what he thinks they would be
well advised to do. Unlike the courts, a leading commentator has re-
marked, the Ombudsman “is not required to base his judgment solely
on legal considerations; rather, he may include in his opinions more
discretionary reflections on the justification and expediency of the
conduct of administrative agencies, without having to disguise them
in the garb of traditional legal analysis.” 20 The Ombudsman has, for
example, explicitly said that an official organ cannot be criticized
for what it has done or failed to do in the particular matter under
discussion, because its acts were consonant with existing law –
and
then has outlined what he believes would be a better practice for the
future.21
For an example of a substantive suggestion, see Folketingets Ombudsmands
Berenting for Aret 1962, at 36: A complainant asserted that an administrative
organ had denied him cash sickness benefits because it had misinterpreted the
health insurance law. The Ombudsman concluded that he could not criticize the
interpretation given the statute, but he urged the Ministry of Social Affairs to
consider whether the act should not be amended at the first opportunity in order
to clarify the conditions of eligibility for benefits.
The Ombudsman sometimes nimbly oversteps the dividing line
between passing upon the merits of a specific decision and suggesting
methodological improvements. One of his recent reports, for example,
discloses a textile importer’s complaint that he had been forced to
pay excessive customs duties on seven lots of nylon between July 29,
1959, and June 21, 1961.22 As to five lots imported before 1961, the
Ombudsman agreed with the Department of Customs and Excises
19 S. Hurwitz, The Folketingets Ombudsmand, 12 Parliamentary Affairs 199,
(1959); and see also the same author’s Scandinavian Ombudsman, 12
202
Pol. Sci. 121, 124 (1960).
20 B. Christensen, The Danish Ombudsman, 109 U. Pa. L. Rev. 1100,1116 (1961).
21 The Ombudsman’s contributions to administrative procedure reform are dis-
cussed in L M. Pedersen, The Danish Parliamentary Commissioner in Action,
[1959J Public Law 115, 116-120.
2 2 Folketingets Ombudsmands Beretning for Aret 1962, at 27.
No. 1]
THE OMBUDSMAN IN DENMARK
that the complaint was groundless. As to the two lots imported in
1961, however, a more troublesome question appeared because the
applicable tariff rate had been reduced before the importation occur-
red. The Department had denied the importer’s claim for a refund
because he had paid at the preexisting (and higher) rate without
protest, no samples of the imported goods now remained available
for quality analysis, and an overpayment if it had in fact occurred
was attributable to the importer’s having neglected to provide all
the information needed by the customs authorities. The Ombudsman,
having reviewed a rather extensive file, concluded that the importer’s
factual presentations had not been so gravely deficient as to justify
rejection of his claim. Without deciding that a refund should be made
in any specific amount, the Ombudsman therefore requested the
Department to reconsider the once rejected claim. This it agreed to
do, and there the matter ended. In a technical sense, the Ombudsman
did not overturn a decision he had found to be erroneous; the over-
turning was done by the Department itself. Realistically, of course,
the Ombudsman’s muscle provided the push.
Sometimes the muscle is not so clearly evident, but its presence
is nevertheless strongly suspected. A ministry dismissed a civil ser-
vice employee with loss of pension rights because of his faithless-
ness. Subsequently another administrative organ denied him an old
age pension, as was apparently statutorily correct in view of the
conditions of his past employment. The Ombudsman, when besought
to relieve the former civil servant’s plight of being pensionless in a
country where not having a pension is indeed phenomenal, found
nothing he could criticize. He neither publicly demanded a change in
the rulings nor appealed for mercy in the penniless man’s behalf. Soon
afterward, however, the ministry relented. It substantially restored
the civil service pension benefits previously ordered to be forfeited.
Civil servants who tell this story ascribe the change to the Ombuds-
man’s mediatory efforts. The correctness of their belief has not
been officially confirmed, but its very existence is significant.
A more generalized administrative determination came under
scrutiny when a convict complained that he had been unable to cast
his ballot in a recent parliamentary election.23 A registered voter may
vote at his place of registration or, if he will necessarily be absent on
election day, by previously depositing his ballot at another registration
office. A prisoner requested permission to leave the penitentiary
so that he might vote at a nearby registration office. The prison
administration denied permission because escorting a stream of
23 See op. cit., supra note 22, at 23.
McGILL LAW JOURNAL
[Vol. 12
prisoner-voters to the nearest town was impracticable; as to some
strictly confined prisoners, excursions beyond prison walls were
entirely out of the question. The Ombudsman, having received this
explanation, said that the prison directorate could not be criticized
for its decision. He added, however, that he thought the rules
about prisoners’ voting should be altered. Since Denmark does not
regard loss of civil rights as an element of punishment for crime, the
Ombudsman urged that prisoners should be encouraged to function as
citizens to the fullest extent feasible. The Minister of Justice, to
whom the Ombudsman had addressed these remarks, agreed with
the position taken. He promised that he would be mindful of the
Ombudsman’s views when subsequently discussing the possible enlar-
gement of absentees’ voting opportunities. 24
The power of persuasion. One should not conclude that the
Ombudsman broods in splendid isolation and then “states his views”
to a rapt audience of officials. On the contrary, many of his pro-
nouncements merely record conclusions previously reached jointly
by the Ombudsman and the administrative organs involved.
Sometimes, indeed, they might best be described as negotiated
settlements, representing not what the Ombudsman may initially
have proposed but, rather, what the administrators have been ready
to accept. Mutual enlightenment and persuasion may beget conclu-
sions agreeable to the officials and the Ombudsman alike, though
perhaps not entirely to the taste of either. So far as the record may
show, the Ombudsman simply made recommendations that were ac-
cepted; the record may not show with equal clarity whether the
recommendations were modified to make them palatable.
The bargaining process, some cynics say, produces a spurious
air of accomplishment. It creates, they contend, a misleading image
of the Ombudsman as a fount of wisdom from which flow inspired
ideas gladly adopted by all concerned.
That is too harsh a view. Discussion before pronouncement has
been a functionally sound choice. It has encouraged cooperation and
receptivity. The Ombudsman, a man of tact, believes that persuasion
is more enduringly forceful than edict. He realizes, too, that Den-
mark’s able civil servants possess a valuable store of experience
which can fortify his own judgment; he is humble enough to realize
24 The problem of absentee voting affected hospital patients in the same
manner as penitentiary inmates; patients, like prisoners, lost their votes if
unable to deposit them in person. Despite the Minister’s assurance in 1962 that
the problem would be well considered, no change in the pertinent statutes had
been made as of the end of 1965.
No. 1]
THE OMBUDSMAN IN DENMARK
that one man cannot possess all human knowledge. Hence the nego-
tiations that precede his recommendations are genuine opportunities
for enlightenment and not merely for compromise.
The discussions have had another value. They have decreased the
Ombudsman’s workload because administrators who have come to
understand and approve his approach have, in later instances, taken
suitable steps without his having had to prompt them in each in-
stance. So, for example, one of the Ombudsman’s assistants recently
remarked that the national police administration “has become quicker
than we are. Cases have started with a complaint to the Ombudsman;
a request has been made to the police for information; they have
immediately investigated; and, after the investigation, they have
reported not only the facts they have found, but what they propose
to do unless the Ombudsman disagrees. Instead of having to belabor
the cases, we have been able to close them”.
Similarly, though on a different plane, the Ministry of Social
Affairs recently revised the work methods of one of its bureaus
in order to strike at slow action on difficult cases. “We knew from
past experience”, a Ministry spokesman declared, “that what seem
to us to be troublesome decisions do not necessarily seem so to an
outsider, and we also knew that the Ombudsman had been severely
critical of what he regarded as undue delay in some of our other
proceedings. So we developed new criteria for identifying the tough
cases, which now go at once to senior personnel without first being
put to one side by somebody who dreads having to tackle them.”
“Preventive therapy” of this kind, perhaps stimulated by the
Ombudsman but, in an immediate sense, voluntarily initiated by
the administrators themselves, is especially valuable. Self reform
has deeply penetrating and usually lasting consequences.
The Sources of the Ombudsman’s Business and
How He Disposes of It
The statute and directives under which the Ombudsman func-
tions authorize him to proceed upon the basis of a complaint, upon
his own initiative, or by direct inspection of official operations. All
persons in the service of the State must furnish information and
“produce such documents and records as he may demand for the
performance of his duties. ’25
25 Parliamentary Directives, Feb. 9, 1962, Art. 3 (4). Whether the Ombudsman
can demand to see the “internal working papers” of a ministry is unclear. Some
authorities maintain that they are not “documents or records” which must be
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Inspections. Inspections do not bulk large in the Ombudsman’s
work.
Perhaps because of his own long-standing interest in penology,
Professor Hurwitz has spent considerable time inspecting places of
detention, where persons in custody have been enabled to confer with
him privately.26 A veteran prison administrator said in 1964, “The
inmates look forward to his visits. It makes a nice change for them.
They enjoy talking with him even if they have to invent a complaint.”
The Ombudsman agrees that most prisoner complaints have proved
to be unmeritorious, but he nevertheless believes that “these talks
may well be considered important, since apart from the value they
may have for the person confined, they may afford grounds for exam-
ining questions of more general interest.” 27 Specific “questions of
more general interest” that came to light through inspections and that
would not equally have come to light by a written complaint could
not be pinpointed in 1964. No doubt, in any event, the prisoners’
conversations with a nationally important personage do have psycho-
logical value, for they may allay the feeling that prisoners have been
wholly rejected and forgotten by society.
Apart from institutional inspections (which are somewhat a mis-
nomer, for the institutions are usually not so much inspected as simply
visited to facilitate personal conversation), the Ombudsman has also
briefly visited military barracks. The infrequency of complaints by
produced if requested. Some ministries have in fact been including them along
with more formal materials, when the Ombudsman’s office has asked to see a
case file. Members of the Ombudsman’s staff have expressed doubt that their
production could be compelled, and the matter is unlikely to be put to the test.
Denmark, unlike Sweden, does not have a sweeping requirement that the files
of official bodies be open to general inspection by the public.
As for “secret” documents –
a
member of the Ombudsman’s staff has been given “top secret clearance” so that
pertinent papers may be consulted when deemed necessary; for instance, in
connection with a complaint that a permit to work in Greenland had been wrong-
fully withheld, a personnel security file was made available in this manner.
as in military or foreign affairs matters –
26 Section 6 of the statute creating the Ombudsman provides, additionally,
that “Any person deprived of his personal liberty is entitled to address written
communications in sealed envelopes to the Parliamentary Commissioner.” It has
become a fairly open secret, however, that this pledge of privacy does not mean a
great deal, because the Ombudsman asks the authorities to comment on the
communications he has received, or he sends the authorities copies of his replies
to his correspondents; hence both the identity of complainants and the nature
of their complaints become known in fact. The Ombudsman’s action in this
regard is consonant with his duty, under Section 7 (3) of the statute, to provide
officials an opportunity to respond to criticism.
27 S. Hurwitz, The Ombudsman 15 (1961).
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THE OMBUDSMAN IN DENMARK
soldiers is said to have been a surprise, and he therefore thought it
desirable to make himself personally accessible to military personnel.
He paid four visits to military bases in 1963, looking at sleeping
quarters, infirmaries, and eating places and also conversing with
soldiers, who seemed to him to be reasonably well contended. 28
So far as can be determined, he has never inspected an adminis-
trative organ, national or local. During an interview in 1964 the
Ombudsman expresssed doubt that random sampling of administrative
operations by pulling case folders from the files, would reveal any-
thing useful. His remark reinforced the strong impression that Pro-
fessor Hurwitz, unlike his Swedish counterpart, is skeptical about the
value of routine inspections. 29 In any event, his annual reports call
slight attention to this phase of his work, and it seemingly consumes
only a small portion of his energy.
Initiative. While empowered to proceed on his own initiative,
the Ombudsman rarely commences an investigation except upon
complaint. During the five years 1960-1964, inclusive, the Ombuds-
man’s office docketed 5,745 cases, of which only about sixty where
launched on his initiative.
The qualitative importance of those few cases was, however, high.
In what is perhaps the most illuminating of his various published
discussions, the Ombudsman has described at length six cases under
the heading, “Some Examples of Cases of Special Interest.”30 Two
of the six were self-initiated: “Because of widespread newspaper
discussion of the case the Parliamentary Commissioner decided in
1955 to make an investigation of the Royal Veterinary and Agricul-
tural College’s treatment of a thesis…” and “In May 1958 Ejnar
Blechingberg, Commercial Adviser at the Danish Embassy in Bonn,
was charged with espionage… The case was debated in Parliament
in February 1959 and thereafter the Parliamentary Commissioner
found it expedient – on his own initiative –
to investigate the steps
taken by the Ministry of Foreign Affairs since 1940 relative to Blech-
inberg, and his position in the Foreign Office.”
28 Folketingets Ombudsmands Beretning for Aret 1963, at p. 7. After an inspec-
tion by the Ombudsman, the Army is said to have declared all-out war against
cockroaches in military kitchens. The Ombudsman also used his influence with
the state railways to obtain free transportation for soldiers while on leave.
29 See Gellhorn, The Swedish Justitieombudsman, 75 Yale L.J. 1, 22-31 (1965);
as to Finnish experience, see Finland’s Official Watchmen, 114 U. Pa. L. Rev.
327 (1966). The writer shares Professor Hurwitz’s skepticism.
80 S. Hurwitz, The Ombudsman 31 (1961).
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As these two examples may suggest, the matters into which the
Ombudsman has inquired without having been bidden to do so tend
to be scandalous and to have aroused public disquietude. “In such
cases,” a prominent scholar has written, “the Ombudsman’s activities
assume a special character. In each, his main business has been to
get to the bottom of the case, to segregate the core of truth from the
exaggerations and controversy, and to try to put an end to the affair.
In most cases he has been successful, and his recommendations have
often resulted in new regulations and procedures designed to prevent
the recurrence of such episodes.”’31
The low number of avowedly self-initiated cases obscures the fact
that the Ombudsman often goes far beyond the confines of a complaint,
once an investigation has commenced. Danish lawyers give the Om-
budsman very considerable credit, for example, for having speeded
the final determination of tax matters. This he achieved by proposing
procedural and organizational changes after a sweeping study of tax
administration. The study was undertaken after a single taxpayer
had complained about a seemingly unconscionable delay in obtaining
a needed ruling. Investigation of that complaint broadened into a
general survey. Statistically, the matter is still recorded as a com-
plaint case. Realistically, it might well be included among the Om-
budsman’s self-initiated probes.
The same may be said of numerous other cases. What may at first
have seemed to be narrowly personal grievances were later perceived
to have implications that overshadowed the initial episodes. So, for
example, a correspondent’s complaint that a letter to the Ministry
of Education had been unanswered led, in the end, to an examination
of internal controls and suggested changes in supervisory practices.
In the most literal sense all of this may have been “inatiated” by the
disgruntled correspondent, but in truth he had probably never imag-
ined that annoyance about one mislaid letter might cause a compre-
hensive inquiry into a ministry’s work methods.
Complaints. The Ombudsman is not obligated to spring into
action whenever a complaint reaches his desk. The statute (Sec. 6)
requires a complainant to identify himself 832 and to lodge his complaint
31B. Christensen, The Danish Ombudsman, 109 U. Pa. L. Rev. 1100, 1124
(1961).
32 In a few instances a complainant has requested that his identity, though
revealed to the Ombudsman, be withheld from the official or organ complained
against. If the Ombudsman concludes that the request should not be honored,
he simply writes the complainant that he may withdraw the complaint or allow
his name to appear, whichever the complainant may prefer.
No. 1]
THE OMBUDSMAN IN DENMARK
within a year after his grievance arose; 33 action by the Ombudsman
must be withheld if available administrative remedies have not been
exhausted; the Ombudsman may determine, in all events, “whether
the complaint gives sufficient grounds for an investigation.” The
Parliamentary Directives provide, additionally, that complaints .should
ordinarily be written and supported by evidence (Art. 4), that the
Ombudsmian should take no action on a complaint beyond his jurisdic-
tion or tardily filed, other than to refer it to the appropriate authority
and “give the complainant reasonable guidance” (Art. 5), and that
the Ombudsman may simply inform the complainant that “he finds
no reason to take action in the matter” if he believes that a complaint
is “unfounded” or that its subject matter is “insignificant” (Art. 6).
Further, a “Supervisory Board” has been established by Danish law
to deal with the treatment of patients in mental hospitals, alcoholism
centers, and other institutions; the Ombudsman is directed- to refer
to that board all complaints “about the treatment of persons deprived
of their personal liberty thr6ugh any procedure other than the admin-
istration of criminal justice” (Art. 5), thus enabling him to slough
off a type of case that has bedeviled ombudsmen in other countries.
(Though the Board Seems now to be falling into the habit of asking
-the Ombudsman to investigate, after all).
These limitations have kept the Ombudsman’s work within man-
ageable dimensions, though new cases come in at the rate of more
than a thousand per year.3 4
During the five years 1960-1964, inclusive, the Ombudsman took
up for investigation only 856 cases, constituting but 14.9 percent of
the 5,745 matters registered at the Ombudsman’s office in that period.
Readiness to investigate seems to be declining.35 The increasing pro-
portion of dismissals perhaps reflects the Ombudsman’s sharpened
awareness of what he can feasibly do.36 Assuredly it also reflects a
33 The Ombudsman notes that he can decide to proceed on his own initiative
if a complaint has been barred by time, but he is not likely to do so in the absence
of some “exceptional circumstance”. Similarly, he can, if he chooses, proceed on
his own initiative in respect of the subject matter of an anonymous complaint.
So far as has been discovered, he has never yet chosen to act on an untimely or
anonymous complaint, so one must guess at what circumstances he might deem
to be exceptional.
34 Total new matters registered in recent years have been as follows: 1961 –
1,065; 1962 – 1,080; 1963 – 1,130; 1964 – 1,370.
35 In 1956, the first full year of the Ombudsman’s service, 50.4 percent of the
cases filed were investigated. In 1964, the figure had fallen to 12.4 percent.
36 The Ombudsman has acknowledged a tendency to dismiss summarily com-
plaints that relate to “certain groups of discretionary administrative decisions…
where as a rule experience has proved that the Commissioner is not able to
McGILL LAW JOURNAL
[Vol. 12
statutory change that has enabled him since 1959 to ignore complaints
about decisions still susceptible of being reversed by a superior
administrative authority.37
The actions taken upon cases docketed in recent years is summar-
ized in Table I immediately below, which reveals how exercising
judgment at the threshold enables the Ombudsman to concentrate
his energies on relatively few cases.
Table I. Disposition of matters registered
……………………..
Total registered
Considered on the merits ………………..
D ism issed ……………………………………………………
filed tardily ……………………………………..
(pertaining
(a)
(b) outside jurisdiction
to
judiciary, local councils, private per-
sons, etc.) ……………………………………….
administrative remedies not exhausted
(c)
anonymous or meaningless …………….
(d)
(e) Ombudsman found no basis for com-
plaint or subject matter was trivial
though within his jurisdiction …………
inquiry rather than complaint …………
(f)
(g) withdrawn by complainant …………….
initiated by Ombudsman and then
(h)
dropped without action ……………………
1963
1,130
151
979
54
1964
1,370
170
1,200
68
1962
1,080
152
928
41
281
181
28
313
166
38
394
240
38
281
146
32
293
119
36
254
124
28
1
To say that a case is “considered on its merits” is not to say that
the Ombudsman has in every instance found grounds for criticizing
the officials involved. In fact, criticisms of particular occurrences or
general suggestions for future improvement (both of which may
appear in the same case) were made in approximately a quarter of
the cases closed after investigation during the years 1960-1964. Less
3
2
criticize. As examples of such groups may be mentioned, complaints concerning
the amount of maintenance fixed by an administrative authority, refusal of a
petition for free legal aid in law-suits against private persons, refusal of applica-
tion for reduction of tax assessment and petitions for mercy. To these groups
may be added complaints about the degree of disablement fixed in workmen’s
compensation case…” Hurwitz, op. cit., supra note 30, at 18.
37 The amendment was embodied in Act No. 205 of June 11, 1959. The relation-
ship of investigations to new filings, expressed in terms of percentage, was 37.8
in 1957. In 1958, the percentage was 26.5. This fell to 20.7 in 1959, and it has
continued downward since.
No. 1]
THE OMBUDSMAN IN DENMARK
than one in twenty of the total number of matters registered gave
rise to censure or representations by the Ombudsman.
The Ombudsman’s remarks, while not staggeringly numerous,
have grown out of cases involving a very large number of govern-
mental authorities. The cases carried to a conclusion in recent years
have related to fifteen ministries, thirty-nine national administrative
authorities, and five local organs, as well as the police and prose-
cutors.
Table II. Official establishments involved in cases
determined after investigation
Ministeries
Other national
agencies
Local
agencies
31
39
26
0
4
5
12
15
14
1962
1963
1964
Those chiefly involved in each year were the Ministry of Justice
and the Ministry of Finance. The former generated sixteen cases in
1962, eleven in 1963, and seventeen in 1964. The Ministry of Finance
was the object of inquiry in twenty-five cases in 1962 and fifteen
in both 1963 and 1964. The conduct of police and prosecutors was
brought into question in nine of the 1962 cases, fifteen of the 1963
cases, and seventeen of the 1964 cases. The Ministry of Defence was
involved, during these three years, in a total of twenty-four cases,
and state prisons in thirteen. In 1964 no ministry (except Justice and
Finance) or other administrative body gave rise to more than ten
cases.
The types of problems dealt with in recent years have been sum-
marized in Table III, below, which shows that the substantive content
of official decisions is the largest single cause of serious complaint.
This is especially noteworthy because the ombudsman system has
sometimes been represented as necessary chiefly to control bad man-
ners rather than bad judgment. In fact, as the figures below disclose,
the administrators’ judgment arouses far more controversy than does
their behavior.88 The second largest cause of serious complaint has
been summed up by the term “case handling,” which includes all
aspects of administrative procedure, but excludes complaints about
alleged slowness, which have been tabulated under the heading, of
“delays.”
38 This is not a new development. Figures compiled by the Ombudsman for the
years 1957-1960, inclusive, show in summary that 46.2 percent of all the cases
taken up for investigation in that period related to official decisions, while only
6.3 percent had to do with official conduct. Hurwitz, supra note 30, at 21.
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Table III. Nature of issues involved in cases
determined after investigation
.11
1961
1964
General questions ………………
10
Decisions ………………
58
Case handling ……………………….
33
D elays ………………………………….
32
Behavior, statements, etc ………
13
Civil Service –
appointment,
discipline, wages, pension, etc.
1963
10
53
31
28
7
1962
14
49
33
19
15
56
44
22
23
18
22
22
24
174
152
151
170
Civil servants as complainants. The. final entry in the imme-
diately preceding table, showing civil service disputes as a substantial
ingredient of the Ombudsman’s caseload, deserves particular attention.
When the ombudsman system was first proposed in Denmark, civil
servants and their organizations were energetically opposed. Existing
review mechanisms,
they contended, provided ample protections
against mistake. To create an overseer of public administration would
be simply to invite harassment by cranks and malcontents. Uuti-
mately, too, it might lead to debasing personnel safeguards that had,
,over the course of many years, created a professional, responsible,
trustworthy Danish civil service envied by less favored countries.
When the ombudsman statute was enacted despite this opposition,
it embodied clauses intended to mollify civil servants. Anonymous com-
plaints were proscribed (See. 6) in order to lessen the risk of irres-
ponsible accusation.3 9 The new law also provided (Sec. 7) that a civil
servant involved in a matter of interest to the Ombudsman “may
always demand that the matter shall be referred to treatment under
the provisions of the Civil Servants (Salaries and Pensions) Act,”
which meant in effect that he could insist upon being investigated by
the agency in which he served rather than by the Ombudsman.
This provision, added to the original bill upon the demand of civil
service groups, has never been used. “In the beginning,” the president
of a major organization recently said, “we were suspicious. As a
matter of fact, we were scared. But we have found that we were
mistaken.” Instead of fleeing from the Ombudsman, civil servants
39 The Ombudsman can still, if he elects, take up “on his own initiative” a
.matter reported to him anonymously. Experience has persuaded him, however,
that the writers of anonymous complaints are almost invariably “crackpots”.
No. 1]
THE OMBUDSMAN IN DENMARK
have fled to him. Many of their cherished “protections” had in fact
not been legally enforceable through the ordinary courts, and Den-
mark has had no administrative court specially empowered to deal
with personnel disputes. The Ombudsman’s capacity to inquire into
every type of official lapse was quickly seized upon by public servants
who thought they had been ill treated by their superiors. Thus it has
come to pass that over thirteen percent of all the cases fully investig-
ated by the Ombudsman in 1962, 1963, and 1964 involved controversies
about personnel matters.40 The share of his time devoted to this type
of problem seems all the more remarkable when one recalls that the
group from which the cases arise numbers only a little more than
100,000 in a population of 4,500,000.
Another aspect of the Ombudsman’s relations to civil servants
deserves mention. When the statute was being considered in 1954,
many low-ranking public employees opposed it because they feared
the Ombudsman’s weight would fall mainly on them. They were the
ones who met the public face to face. They were the ones, they thought,
against whom the public would complain, even when they were simply
carrying out their standing orders. To avoid being involved in contro-
versy, they forecast, many civil servants might refer matters to their
superiors, thus delaying final action and destroying initiative at sub-
ordinate levels. These fears appear to have been wholly set at rest.
The Ombudsman has declared that most complaints addressed to him
have been made quite impersonally against the administrative organ
concerned, rather than against individuals whether of high or low
40Many of these are petty. In 1962, for example, the Ombudsman criticized an
administrative authority for having answered an employee’s letter by telephone
instead of in writing. And he criticized another body for not giving a civil servant
a copy of an adverse report about his work, though the report had been shown
him. Folketingets Ombudsmands Beretning for Aret 1962, at pp. 38, 51. A more
serious matter arose during the same year when a highly ranked official (near
retirement age) was removed from an important technical post on the ground
of* alleged incompetence. Without reference to the issue of competence, which
was seriously controverted, the official seems to have been markedly incompatible
with associates. He was finally released from his post, but on full pension.
This was in the nature of an agreed settlement. His attorney has expressed
belief that had the Ombudsman not been involved in the case, the official would
simply have been discharged without pension. No appeal from that action would
have been possible.
In one interesting case the Ombudsman concluded
that a civil service
employee had been discharged in violation of applicable regulations. Besides
criticizing the administrative action, he recommended that the, discharged em-
ployee be given free legal aid to sue for damages. This was done and a settlement
was made out of court; the wrongfulness of the discharge was acknowledged
and damages were paid. See Hurwitz, op. cit., supra note 30, at 25-26.
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rank.41 Many of the decisions in cases he has taken up for investigation
have stated explicitly that while no basis has been found for criticizing
the civil servant whose actions have been in question, the Ombuds-
man has nervertheless desired to comment on a general administrative
practice that, in his view, should be revised for the future; thus he has
taken pains to avoid blaming an individual official for following paths
others have mapped for his use. The president of the largest civil
servants’ organization unequivocally concluded, during a recent con-
versation, that the possibility of a citizen’s complaining to the Om-
budsman has not deterred civil servants from exercising appropriate
judgment in matters within their authority. “We thought,” he said,
“that inflexibility, uncritical insistence upon rules, bureaucratic rig-
idity, and efforts to obtain advance approval were going to increase
after the Ombudsman had found a few occasions to criticize officials.
But we have been proved wrong. The civil service in Denmark has had
a good tradition and the Ombudsman has not weakened it.”
Sources of complaint. The Ombudsman’s annual reports iden-
tify agencies against which complaints have been made, but do not
describe the complainants. Persons close to the Ombudsman have
estimated that civil servants have initiated about five percent of all
the cases received in recent years, that ten percent of the complaints
have come from persons in detention either before or after conviction
of crime, that five percent of the complainants have been inmates in
public institutions of one kind or another, and that attorneys have
signed about five percent of the complaints and have perhaps prep-
ared another five percent to which their clients’ names have been
attached. The remainder have come from “the public at large,” with-
out any significant occupational or geographical grouping that has
been noted.
The attorney’s relationship to the Ombudsman’s work warrants
a few additional comments.
Spokesmen for the advocates’ association, to which every Danish
lawyer must belong, tended in 1964 to minimize the Ombudsman’s
significance. As one of them said, “He is chiefly concerned with petty
problems that don’t affect businessmen. When a businessman has a
problem, his lawyer sends him to the right office in the right ministry,
and that will take care of the problem without going to the Ombuds-
man.” Another remarked: “From our point of view, the Ombudsman
is valuable mainly because we lawyers can refer quarrelsome people
to him and get them out of our own offices, where they take up a lot
of time but produce few fees.”
41 Hurwitz, op. cit. supra note 30, at 22.
No. 1]
THE OMBUDSMAN IN DENMARK
Other practitioners’ comments suggest that these reactions may
not be representative. Several prominent advocates, interviewed
separately, described their own recourse to the Ombudsman in behalf
of clients who remained dissatisfied with final administrative acts
for which judicial review had been unavailable. All agreed that the
Ombudsman’s accessibility had diverted no clients from them, but
had instead given lawyers an additional avenue of redress. One of
them, indeed, expressed surprise upon being told that attorneys were
not the chief source of the Ombudsman’s business. lie proceeded to
describe cases filed by him in which the Ombudsman, without criti-
cizing decisions previously rendered, had made “clarifying state-
ments” the “clients found very satisfying and regarded as valuable
for public relations purposes.” In another instance an administrative
determination adverse to the client had remained unmodified but had
been quietly ignored by officials in future years, a result the attorney
attributed to questions asked by the Ombudsman. Another lawyer,
after recounting a somewhat similar case that had had a favorable
outcome, added: “As a matter of fact, I have found that just having
the Ombudsman reject a complaint, saying that he finds nothing to
criticize, sometimes helps me with a client. It serves at least to per-
suade the client that we have done everything we can, and puts an
end to what might otherwise be a continuing doubt.”
While so narrow a sampling of professional experience permits
no confident conclusions, evidence is at hand that alert members of the
bar can and do use the Ombudsman advantageously.
The Ombudsma’s staff. Constant reference to “the Ombuds-
man” might suggest to the unwary that he singlehandedly copes with
all the problems referred to him. He does in fact utter the final word
in each instance, but he has able assistance in preparing to do so.
The Ombudsman’s staff consists of seven lawyers and five clerical
employees. The present “chief of office” and a senior assistant have
been associated with the Ombudsman from the first. Three junior
staff members joined the office immediately upon receiving their law
degrees. Two others were “borrowed” for three years from perma-
nent posts elsewhere. The demand for lawyers is greater than the
available supply in Denmark. Moreover, the salary scale of Danish
government employees
is not impressive. The demand for their
services coupled with their low official salaries has induced many
legally trained civil servants to hold more than one job. Sometimes
both their jobs are in the public sector. Sometimes they work in an
attorney’s office or serve as counsel to a private organization. Most
of the Ombudsman’s assistants are nominally part time employees
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because they have dual employment. 42 They seem nevertheless to
work at a full time pace.
Attachment to the Ombudsman’s office is apparently regarded
as a desirable assignment. A former chief of office has become a
member of the High, Court, and junior staff members have also
moved on to attractive positions after service with the Ombudsman
had given them broad exposure to governmental activities.
Staff conferences do not occur, nor do staff assistants generally
have other direct associations with the Ombudsman. They consult
the Chief of Office about difficult problems occasionally, but the
Ombudsman’s organization seemingly
lacks informality and the
personal touch despite its smallness. No doubt exists, however, about
whose is the dominant personality at work in that establishment.
The Ombudsman does not permit actions to be taken in his name.
Even when he is on vacation, papers must be sent to him by post for
his consideration and personal signature.
Processing complaints. Each incoming complaint is passed to
the Ombudsman personally as soon as it has been numbered and
entered in the official register.43 He may jot down brief directions in
the margin, or point out some special aspect that has aroused his
interest. The file then passes to the Chief of Office for another quick
glance before being assigned to a staff member. Each staff assistant
receives, in turn, all the cases registered during a calendar week, an
average of about twenty. Specialization according to areas of govern-
mental activity or types of complaint has not been encouraged.
Cases that are clearly not cognizable by the Ombudsman (such as
those, for example, pertaining to judges or to private legal problems)
are quickly disposed of, as are those the Ombudsman has decided not
to investigate because their subject matter is unappealing.44 The
42 No rules have been laid down concerning possible conflicting interests arising
from a staff member’s dual employment. A few problems have in fact occurred,
but have been disposed of informally. As for the Ombudsman himself, the govern-
ing statute (Sec. 12) forbids his holding any public or private office except
with the consent of a Folketing committee; and the parliamentary directives
(Art. 16).instruct him that if he “finds that a case involves circumstances which
may give rise to doubt about his complete impartiality,” he must inform the
Folketing committee, which will then “decide who is to perform his functions.”
-43 A few complainants have chosen to present themselves at the Ombudsman’s
office without reducing their complaints to writing. The governing statute and
the parliamentary directives do not flatly require complaints to be written,
though the directives do say (Art. 4) that they “should, as far as possible, be
submitted in writing and be accompanied by the complainant’s evidence.”
44 See pp. 16-18, supra.
No. 1.]’
THE OMBUDSMAN IN DENMARK
staff member simply drafts a letter for the Ombudsman’s signature,
informing the complainant that the matter will not be pursued.
In many other instances, a telephone call to the agency concerned
provides the basis for speedy action. Thus, for example, an agency
may disclose that the complainant has not yet utilized his right of
administrative appeal. In that event the Ombudsman may transmit
the complaint to the agency (notifying the complainant that this has
been done) or may advise the complainant to pursue the available
remedies; the complaint to the Ombudsman will in either event be
dismissed as premature.4 5
In other cases, a telephone call about a complaint against official
lethargy may elicit information that the desired action has in fact
already occurred; or it may reveal that the agency’s non-action was
caused by the complainant’s failing to reply to the agency’s request
for additional data.
In all such matters, the staff member summarizes the complaint
and the information he has informally obtained, proposes a suitable
disposition of the case, and drafts a letter to the complainant for the
Ombudsman’s signature. The file then passes from the assistant to
the Chief of Office and, if he approves, to the Ombudsman for final
action.
Approximately half of all the complaints filed with the Ombuds-
man have been reviewed and finally disposed of in some such manner
Within a fortnight after their receipt.
Each staff assistant has full responsibility for developing the
facts in the cases assigned to him. This may necessitate obtaining the
official files bearing upon a complaint, but, more frequently, a directly
informative statement is sought from the official or agency concerned
in the complaint. When issues of fact are present, the agency’s state-
ment is usually sent to the complainant for his rejoinder, upon which
the agency will in turn be given opportunity to comment. In these
exchanges, the officials always have the last say. Occasionally com-
plainants have been invited to come to the office for personal con-
ference, but nothing in the nature of an adversary hearing or a con-
frontation of complainant and accused official has ever occurred.
While the statute (Sec. 7) gives the Ombudsman the power to draw
45 See pp. 16-18, supra. The Ombudsman infrequently requests that he be in-
formed of the cognizant agency’s action on a case he has referred to it. His
annual reports have suggested several times that an administrative decision
adverse to a private party should be routinely accompanied by information about
appellate processes and other available remedies. The suggestion has not yet
been widely accepted.
McGILL LAW JOURNAL
[Vol. 12
upon judicial assistance in order to compel the giving of testimony
and the production of evidence, no occasion has yet arisen for taking
such a step.
When written observations or documentation have been sought,
responses to staff inquiries have usually been made within a month;
if no reply has been received within two months, a second inquiry
occurs routinely. Approximately twenty-five percent of the Ombuds-
man’s cases have been closed in less than two months but more than
two weeks.
Most of the remaining cases have been decided between two and
four months after filing, though some have dragged on for as much
as a year, long after all the facts have been gathered, while discus-
sions have proceeded about what recommendations should be made.
The individual staff members work with a considerable degree of
independence and with opportunity to develop their own “contacts”
within ministries, so that needed information can be speedily obtain-
ed. They are allowed to take far more initiative than their counter-
parts in other Scandinavian ombudsmen’s offices, though the final
product of their labors remains entirely subject to approval by the
Ombudsman, who may return a file with a request for more data or a
completely fresh approach.
His decisions ordinarily take the form of a letter addressed to the
complainant, restating the complaint, reviewing the facts found (and,
when pertinent, the applicable legal principles), and announcing the
Ombudsman’s conclusion. Copies of the letter are sent as a matter of
course to any official personally involved in the matter as well as to
the administrative bodies concerned. If the conclusion contains a.cri-
ticism of a proposal for the future, a covering letter particularly
directs attention to it.
Troublesome cases. One especially troublesome type of case has
consumed considerable staff energy while producing results of some-
what uncertain value. When inquiry has disclosed that a case is
beyond his statutory competence or involves an indubitably legal
though arguably unwise exercise of official discretion, the Ombuds-
man has nevertheless sometimes chosen to explain the complaint at
length and to discuss its significance in such a manner as to disclose
his opinion about the merits. 46 Several ministry officials expressed
strongly adverse sentiments about the Ombudsman’s indulgence in
lengthy dicta. “He upsets us most,” one spokesman asserted, “when
he writes about something we have done, says he cannot criticize us
46 For discussion and examples, see Christensen, op. cit., supra note 4, at 1108.
No. 1]
THE OMBUDSMAN IN DENMARK
for having done it, and then proceeds to criticize exactly the thing he
said he had no power to criticize.”
Substantial staff effort has been devoted, also, to cases cogni-
zable by the courts though submitted instead to the Ombudsman as
complaints against official determinations. Though every administra-
tive remedy must be utilized before a complainant may turn to the
Ombudsman, 47 the continuing availability of judicial review affects
the Ombudsman’s competence not at all. True, he will never consider
a complaint concerning a matter already before a court, whether or
not the court has yet reached a decision. And when the judges have
spoken finally, he follows their lead. Often, however, complainants
address themselves to him instead of the courts simply in order to
save time and expense. He cannot then slough off their complaints as
untimely.
Still he must recognize that his conclusions are indecisive so far
as they deal with legal questions. His interpretations of statutes
defining administrative powers or prescribing administrative me-
thods, for example, may be held erroneous if the same issues are
subsequently brought before the courts. Quite properly reluctant to
be overruled by later judicial decisions, the Ombudsman has pressed
his staff to make thorough legal studies before recommending action.
His final actions in cases of this type have been diverse. Some-
times, when sufficiently confident, he has stated a flat judgment.
Sometimes he has expressed a much more tentative belief, coupling
this with a reminder that the matter is still open for judicial conside-
ration and suggesting that the case be taken to court, at public ex-
pense if the complainant be needy.48 Sometimes he has simply stated
mildly that he is dubious about the administrative agency’s authority
to act as it has done, perhaps adding a suggestion that parliamentary
clarification would be desirable. 40 9 Questions of ultra vires are rarely
4
47 The Ombudsman may, however, take up a case on his own initiative at any
stage of an administrative proceeding. Moreover, if a complaint has to do with
official behavior or methods rather than with the content of the action taken
by a subordinate official, it can be acted upon by the Ombudsman even though
some administrative channel may remain open.
8 Article 6(2) of the parliamentary directives states that the Ombudsman
may, if the subject matter of a complaint brings it within judicial reach, “give
guidance to the complainant with that possibility in view,” and if the complainant
intends to commence a law suit against a public authority or official in respect
of any matter within the Ombudsman’s competence, the Ombudsman may in
appropriate instances “recommend that the complainant be granted free legal aid.”
49 Specific examples if these various approaches to questions of legal authoriza-
tion appear in Hurwitz, op. cit., supra note 30, at 26-28; and see also Christensen,
op. cit., supra note 4, at 1113, 1117-1118.
. McGILL LAW JOURNAL
[Vol.*12
easy for the staff or for the Ombudsman. Often, when unable to come
to a firm conclusion, he ends a discussion by “declaring that the ques-
tion is doubtful and that it is for the courts to make the final deci-
sion.” 50
An Attempt to Appraise
A “cult of the personality” has grown during the incumbency in
office of Professor Hurwitz (though not by his choice). Expressions
of doubt about the accomplishments of his office seem virtually to
be attacks upon the sacrosanct. This attempt to appraise the Danish
Ombudsman must therefore be prefaced by the unusual statement
that the appraisal is of an institution and not of a man.
Publications. The Ombudsman’s relations with journalists have
been cordial almost beyond belief. What he himself has characterized
as “the extremely friendly attitude of the press” 61 has led to exten-
sive newspaper coverage of his decisions. These have usually been
described admiringly and have almost invariably been attributed to
Professor Hurwitz by name, rather than to the Ombudsman as an
official. He has consequently become very strongly identified in the
public consciousness as a noble righter of wrongs. Even the Ombuds-
man’s staff has been surprised by the enthusiasm with which
relatively minor matters have been set forth in the daily press.
Nobody with whom the matter was discussed in 1964 blamed Profes-
sor Hurwitz for the journalistic exuberance, but a number of sober
observers, sympathizing with the Ombudsman’s purposes and admir-
ing his achievements, thought that publicity was sometimes almost
too intense.
If any fault there be, it seems not to be the Ombudsman’s. Danish
law, unlike Sweden’s, does not embody a “publicity principle” re-
quiring that the Ombudsman lay bare to the public everything he
officially knows. 52 The Ombudsman has taken advantage of his power
not to name names, express alarm, and tell all every time a public
servant lapses from absolute perfection.
Decisions have been announced with sufficient “blurring” (as
one staff member put it) to protect both the complainant and the
officials from needless personal embarrassment. An outstandingly
able Danish judge, warning against regarding all promulgators of
50 Hurwitz, Scandinavian Ombudsman, 12 Pol. Sci. 121, 131 (1960).
51 Hurwitz, The Folketingets Ombudsman, 12 Part. Aff. 199, 208 (1959).
52 Compare N. Herlitz, Publicity of Official Documents
in Sweden,
[1958]
Public Law 50.
No. 1]
THE OMBUDSMAN IN DENMARK
adverse discretionary decisions as “sinister power-seeking repre-
sentatives of the New Despotism,” has urged the public to realize
that “even cases where administrative decisions are set aside or
criticised are not necessarily evidence of bad faith or deliberate
error. They ought, in the normal case, to be dealt with in the same
spirit as when a judgment is set aside by an appellate court.'” 3 That
seems clearly to be the Ombudsman’s view. His press releases have
been uninflammatory. They have had’a personalized focus when this
was necessary to make a point, as when the then head of the Univer-
sity of Copenhagen was criticized for evaluating his son-in-law’s
doctoral dissertation. But in the generality of cases the Ombudsman
has dealt with problems, not with people.
The same is true of the annual reports to the Folketing. They are
sober in tone. Individuals are often represented by an initial rather
than by a patronymic. The cases that are discussed in detail are a
conscientious sampling of the year’s work and not a jungle of single
instances amidst which the misguided or the malicious might pretend
to find the seeds of scandal.54
Educational force of Ombudsman’s work. The ombudsman insti-
tution is designed for educational as well as corrective purposes.
Eliminating an isolated imperfection is a worthy objective, but the
achievement becomes truly significant if the correction of one error
induces avoidance of others. Since awareness of what the Ombuds-
man has done is a necessary precondition to its being powerfully in-
fluential, inquiry into the circulation of his opinions is appropriate
here.
The favorable press relations described above have promoted
dissemination of the Ombudsman’s actions in colorful cases. The
Ombudsman makes an effort, too, to reach specialized publications.
Decisions particularly affecting the police forces are sent to the
editor of a periodical circulated among policemen, and matters of
interest to customs officers are similary directed to a magazine
devoted to that branch of public service. “Technical” and gene-
ralized issues remain to be studied, if they are to be studied at all,
only in the pages of annual reports which appear in print in the
autumn of the year after the one to which they pertain.
53J. M. Pedersen, The Parliamentary Commissioner, [1962] Public Law 15,
21, 23.
54The 1963 report, for example, describes only forty-one cases at length; the
196 4 report describes only thirty-five. Each annual report contains a compre-
hensive cumulative index covering all the reports since the first, so that the
document becomes a useful research tool and source book for future reference,
and not merely a record of transient interest.
McGILL LAW JOURNAL
[Vol. 12
Until 1964, only 1700-1800 copies of the annual report were
printed. In that year the number rose to 3600 because, the Ombuds-
man’s jurisdiction having been extended to certain municipal activi-
ties, the report was for the first time sent to every local council
in Denmark. The mailing list includes the members of the Folketing,
all sitting judges, each ministry and administrative authority, every
police chief, many high-ranking officials, and the top-level provincial
administrators.
As every law professor well knows, students’ attentiveness and
receptivity are variables. Some minds seem impervious to even the
most piercing professional thoughts. The Ombudsman, as educator
of officialdom, sometimes similarly encounters mental impermeabil-
ity that blocks the easy circulation of his ideas. His official writings
are nevertheless widely and respectfully read. Supreme Court judges
“almost always read each report carefully though it has no instant
impact on our work ;” a provincial governor reads “all the headlines
in the report and, in depth, all the cases that bear on my own work,
and I think that is what almost all superior civil servants do ;” a
copy goes to every unit in the Ministry of Justice, where it is circu-
lated among approximately ten professional staff members for a
perusal that “is not all routine. The higher up you go in the ministry,
the more carefully you read the Ombudsman’s report ;” in the Finan-
ce Ministry, “most high officials really read the reports and most
academical civil servants [that is, those with university training,
who constitute the corps of professional public officials] at least
run through them.”
The question then arises whether the lessons the reports attempt
to teach are well learned by the report’s readers. Some enthusiasts
for ombudsmanism have given too easy an answer. They have conten-
tedly supposed that whenever an ombudsman has spoken, all officials
have listened. They have imagined that whatever an ombudsman has
said should be done has in fact been done for evermore. The realities of
life are different. The reformer’s lot is not easy, and the Ombuds-
man is a would be reformer.
The Ombudsman’s work has indubitably had a tonic effect upon
public administration. A number of administrators frankly acknow-
ledge that laziness has diminished because during the past decade an
outsider has been in a position to criticize. Work methods have in
some instances been rationalized at the behest of superior officials,
impressed by the Ombudsman’s suggestions concerning other organ-
izations. Moreover, staffs that had like aging humans become too “set
in their ways” have sometimes been liberated from their bondage
by the Ombudsman’s fresh approach. The director of a maximum
No. 1]
THE OMBUDSMAN IN DENMARK
security prison, for example, gives the Ombudsman large credit for
his staff’s increased receptivity to proposed changes. “Some of our
habits were justifiable only because they were easy. Then conserva-
reluctance to try anything different – made us look for
tism –
other reasons to justify the existing practices. Now the staff is more
likely to deal with the real merits of suggestions instead of resisting
them simply because they are new,” he said.5 5 The head of another
large organization commented in a somewhat similar vein: “The
Ombudsman, coming from the outside, sometimes sees things that
are perfectly obvious, but that we have stopped noticing because they
are constantly before our eyes.”
Despite the Ombudsman’s generally wholesome influence, how-
ever, some of his triumphs are more apparent than real.
In one much publicized case seven years ago, for instance, the
Ombudsman told the police they had no right to keep the fingerprint
record of an arrested person who had subsequently been absolved.
The Ombudsman’s advice was taken in that particular instance; the
fingerprints of the complainant were destroyed. But the police have
nevertheless continued to take fingerprint impressions and to retain
them whether or not the persons suspected have afterward been re-
leased as innocent. The Ombudsman’s decision has had no lasting
consequence beyond the case to which it pertained. “The matter is
55 The staff’s formerly resistant attitude first brought it into conflict with
the Ombudsman in an extremely petty matter. A prison rule forbade smoking
in workshops. To facilitate the rule’s enforcement each prisoner was allowed
to possess only one pipe, which had to be left in plain sight in the prisoner’s
cell when he was at work elsewhere. A prisoner complained to the Ombudsman.
Himself an avid pipe-smoker who knew that a pipe loses its savor if too con-
stantly in use, the Ombudsman counselled against restricting pipe ownership,
saying that smoking in workshops could be prevented by other means.
Soon afterward prisoners complained that the prison commissary had rejected
their request that powdered coffee be made available for sale; they desired to
prepare coffee in their own cells at other than meal hours. The staff had voted
against granting the request because hot water could not be made constantly
available to the inmates. The Ombudsman deemed this unreasonable; he sug-
gested, instead, that hot water be supplied at specified times when it was not
needed for other institutional purposes and when most prisoners were in any
event allowed to circulate outside their cells.
In a third episode a prisoner wrote the Ombudsman that bathing facilities
were inadequately maintained, an objection that had apparently not seemed
tenable to the staff members to whom it had first been voiced. When the prison
director himself inspected the facilities after the Ombudsman had made an
inquiry, he concluded that the complaint was indeed well founded. Suitable
corrective steps were then promptly taken.
This succession of incidents, insignificant in themselves, apparently affected
staff attitudes profoundly.
McGILL LAW JOURNAL
[Vol. 12
still under study,” was the euphemistic reply of a high police official
when recently asked whether the Ombudsman’s opinion had affected
police practices.
Similarly, the Ministry of Justice has resisted the Ombudsman’s
repeated urging that its adverse decisions be better explained, instead
of being baldly stated conclusions as at present. Early in 1964 the
Minister did at last appoint a committee to study the feasibility of
adopting the Ombudsman’s ideas.
Failure to formulate the reasons underlying an administrative
judgment has been a prolific cause of complaint to the Ombudsman;
often the Ombudsman’s explanation of a previously incomprehensible
decision has seemingly sufficed to make it acceptable. ” In any event,
whenever the Ombudsman has asked for elucidation of a determin-
ation concerning which he has received a complaint, the ministry has
had to articulate its reasoning and has been unable merely to say, as
did an official during a recent interview, “Maybe ten things are
involved at the same time; it isn’t easy to explain just what each
of them contributed to the final result; judgment is more subjective
than objective.” Sooner or later every ministry encounters what
Julius Stone calls the insistence that “even logically uncompelled
choices are to be made with reasons publicly examinable.” 57 The
56 See Hurwitz, op. cit., supra note 30, at 20: “Since in many instances the
administration gives no reasons for its decisions, and since the complainant does
not often have sufficient knowledge of the basis for the decision in question
he often does not understand it. In many instances, by giving a detailed explana-
tion of the whole matter, it has been possible for the Parliamentary Commissioner
to make the complainant understand that the treatment of the case and the
decision taken, gives no occasion for criticism.”
And see also I. M. Pedersen, The Danish Parliamentary Commissioner in
Action, [1959] Public Law 115, 121: “Quite often it
is very difficult for [appli-
cants] to grasp the principles behind the exercise of discretion especially if the
subject is complicated and highly technical. In such circumstances a quick answer
and a politely worded letter giving detailed reasons for the decision may not
reconcile an applicant to an adverse decision, but it may lessen his irritation
considerably and convince him that his case has been given careful attention.
And as conditions of modern life seem to necessitate an ever-expanding adminis-
tration it becomes increasingly important to establish good relations between
official and the public.”
57 J. Stone, Reasons and Reasoning in Judicial and Juristic Argument, 18
Rutgers L. Rev. 757, 769 (1964).
The Ministry of Social Affairs has, alone among the ministries, been under
statutory command for the past thirty years to state the reasons for its decisions.
in a major area of administrative activity. A spokesman for that ministry
described the requirement as “burdensome,” but added his belief that the decisions
are better because of the necessity of formulating reasons.
No. 1]
THE OMBUDSMAN IN DENMARK
Ministry of Justice appears to a foreigner to have been unduly slow
to heed the Ombudsman’s counsel about giving explanatory state-
ments. But the fact remains that the ministry dragged its heels
(rather than clicked them) after the Ombudsman had spoken.
A similar intransigence appeared when the Ombudsman recom-
mended that reports of police investigations into traffic accidents
be readily shown to the persons involved, as is done in some but not
all localities. The Ministry of Justice rather brusquely replied that it
had considered the suggestion, but saw no reason to change existing
practices. The matter remained under negotiation for several years
while the Ombudsman unsuccessfully sought acceptance of his views.58
Repeated suggestions that administrative agencies provide fuller
information about their internal procedures, so that the availability
of appellate opportunities might become better understood, have
generated few if any discernible advances. This has been one of
many procedural proposals put forward by the Ombudsman, who has
been especially keen to maintain a high level of rectitude in admin-
istrative practices. His ideas in the field seem eminently sound; his
efforts to create, as it were, a common law of administrative
procedure deserve applause. 59 But administrators, when asked point-
blank whether their own methods had been changed, often responded
simply (though not persuasively) that the Ombudsman’s suggestions
were not pertinent to their agencies’ proceedings.
Sometimes, of course, change comes slowly, not in a sudden rush.
Perhaps, therefore, the enduring influence of the Ombudsman’s
proposals can not yet be fully gauged, for some that have seemed to
have narrow effects may in fact gain added support as time passes.
An administrative procedure act of 1964 embodies two ideas adum-
brated by the Ombudsman’s criticisms in previous years, and possibly
those criticisms hastened the new enactment.
58 The matter is discussed in the Ombudsman’s annual reports for 1961 (at
pp. 152-154), 1962 (at pp. 15-16), and 1963 (p. 14).
59 Pedersen, op. cit., supra note 56, at 117-120, points out that Danish adminis-
trative law has laid down few procedural rules to guide administrators. Among
the Ombudsman’s contributions in this field, the author notes, have been criti-
cizing a) an agency counsel’s failure to disclose documents in the case file, b)
a tax board’s entering an adverse decision without affording opportunity for
argument, c) use of ez parte evidence, and d) an appellate board member’s sitting
in review of a decision in which he had participated at a lower level; e) advising
about processing auto drivers’ license suspension cases; f) suggesting that appli-
cants be informed of the cause of delay in acting on their cases; g) proposing
that an unsuccessful license applicant be advised that denial of the license may
be judicially reviewable.
McGILL LAW JOURNAL
[Vol. 12
Candor requires the statement, nevertheless, that until the pre-
sent many of the Ombudsman’s suggestions have been unproductive.
While his proposals for legislative development (growing out of his
consideration of particular cases) have not been ignored, some have
been shelved without action. The Ombudsman has on the whole been
rather unpugnacious when his advice has been unheeded. He has
said that if one of his recommendations is not adopted and if he
“feels that it is of appreciable importance that a change or correc-
tion be made,” he can then “report the matter to Parliament which
may take up the question with the Minister responsible.” 60 In fact
he has almost never sought to enlist parliamentary support when
agreement has not been negotiable. One may speculate that the
reasons are twofold: first, that he has been unsure of winning;
second, that he has concluded that cooperative relationships with the
major administrative organs will in the end bring more victories than
would a heavily wielded bludgeon. 61
Since nobody enjoys having his nose tweaked, the Ombudsman
exercises a fairly cautious judgment about getting into fights he
will probably lose. An especially astute Danish observer, discussing
instances of non-conformity with the Ombudsman’s proposals, made
this concluding comment: “The Ombudsman is a devoted man, acting
without partisan bias, neither for nor against the government in
power. But at the same time he exercises what you might call a poli-
tical judgment about what the ministries and civil servants will take
from him. His work would fail if they did not, at bottom, support it.
Knowing that, he does not go very far up paths they are unwilling to
follow. The reason you do not find more cases of non-compliance than
you do is that the Ombudsman does not often give advice unless he
believes it will likely be taken.”
The Ombudsman’s big reach. The remark just quoted suggests
that the Ombudsman prudently conserves his powers of persuasion.
It should not be read, however, as an intimation that the Ombudsman
has been timid. As a matter of fact, some doubt may be expressed as
to whether he has undertaken to do too much rather than too little.
60 Hurwitz, op. cit. supra note 30, at 11. The governing statute provides (Sec.
10) that if the Ombudsman “informs the Folketing… of a case, or if he brings
up a case in his annual report, he shall, in such information or in his report,
state what the person concerned has pleaded by way of defence”.
61 His attitude in this respect, one may note in passing, has caused confusion
or uneasiness in some quarters. A high official of a teachers’ union, for example,
declared that his organization regarded the Ombudsman as “Ministry-minded”.
It would therefore not have recourse to him if access to the courts were possible,
despite the expense involved in seeking judicial redress.
No. 1]
THE OMBUDSMAN IN DENMARK
He has, for example, sometimes come close to entering into compe-
tition with the Organization and Methods Office of the Finance
Ministry, an internationally known body. whose aid has been widely
sought to improve the internal structures of governmental agencies.
If what is needed is simple advice that an official should maintain a
record- of- cases in his office to enable him to detect undue delays
(advice given not long ago to a branch of the Education Ministry),
the matter no doubt lies within the “‘common sense” competence of
a generalist like the Ombudsman. If more searching investigations of
organization or methods -seem desirable, perhaps the Ombudsman
should not make them himself (as he has done) ,62 but should instead
call upon the specialized staff agency created for just such purposes.
In one instance he approached doing so; the Ombudsman proposed to
a Minister that a study be made of a subordinate unit, the Minister
requested the Organization and Methods Office to do the job, and the
study was successfully completed.
Another staff agency with which the Ombudsman has almost
competed is the “Revision Department,” an’ examiner of official
accounts that reports to the Folketing concerning the propriety of all
expenditures of public funds. Upon complaint of the Royal Danish
Automobile Club the Ombudsman allowed himself to be drawn into a
long-simmering controversy about the propriety of spending certain
motor taxes (the “road millions,” as they had become popularly
known) for purposes unrelated to automobile traffic. The matter had
already been extensively discussed in the Folketing and the issue
seemed, in any event, entirely suitable for consideration by the Revi-
sion Department. Undaunted, the Ombudsman proceeded to study the
merits, concluding that no criticism by him was in this instance suit-
able. Had he reached the contrary conclusion, confusion and conflict
would have been the most likely products of his labor. Since the Om-
.budsman is empowered to look into the actions of all “persons acting
in the service of the State,” no doubt he can concern himself with
officials’ disbursements of public moneys. Since, however, a profes-
sional agency exists for that specific task, his undertaking the assign-
ment may be a misapplication of energy.
62 Compare Hurwitz, op cit., supra note 30, at 30: The Ombudsman has not only
investigated complaints about delay, “but has also undertaken a more detailed
investigation of the whole system for the dispatch of current business in that
office, with a view to the possibility of achieving a reduction in the time usually
involved, by changes in the methods hitherto followed in the disposition of such
business. As a rule these investigations have resulted in a recommendation from
the [Ombudsman]
to the responsible Minister suggesting that an attempt be
made to implement the necessary changes in method or system.”
McGILL LAW JOURNAL
[Vol. 12
Overextension may unfortunately be an inherent element of the
ombudsman system. Those who vaunt the system greatly stress the
importance of the Ombudsman’s personality and his directly partici-
pating in every phase of official superintendence. This emphasis upon
personalism may discourage the Ombudsman’s using other govern-
mental resources, lest he seem to have adopted “bureaucratic me-
thods” and to be “passing the buck.” In plain fact, however, a single
official, aided only by a handful of assistants, cannot encompass all
of organized society’s problems. Ombudsmen everywhere tend to
stretch themselves as close as possible to the unrealistic limits fixed
by uninformed public desire. While unwillingness to stretch at all
would be deplorable, willingness to stretch too far has its perils, too.
A problem of Danish public administration may perhaps serve
illustratively. Child welfare programs of every kind are locally and
somewhat inexpertly administered in Denmark. While the Ministry
of Social Affairs is at the apex of the governmental pyramid, its in-
volvement in decisional processes is sporadic and its superintendence
of a traditionally communal activity has not been insistently firm. In
recent years the methods of local bodies and various other aspects of
child care have attracted the Ombudsman’s interest. He has been in
no position, however, to make the extensive surveys that might yield
full insight into the problems of this branch of public administration.
Improving the organization, standards, and procedures of child care
agencies lay beyond his capabilities realistically, because in the na-
ture of things his contributions would perforce be episodic rather
than comprehensive.
At hand for possible use in matters of this nature is a tax supported
institution –
the Socialforskningsinstituttet, or Social Research
Institute –
specifically designed to conduct field researches and make
empirical studies. This organization, staffed by persons with civil
service status on the Ministry of Social Affairs payroll but having
its own independent board of directors, can function as a national
bureau of applied social research or, perhaps one might even say, as
a social ombudsman. When resources like this fortunately exist, the
Ombudsman might be well advised to use them rather than rely
chiefly on his own capacity to draw valid general conclusions from
sometimes extremely limited data.
Despite the breadth of his initial jurisdiction – which, it will be
recalled, embraced every phase of national administration, military as
well as civil, other than the judiciary –
the Ombudsman has sought
to add to his domain. He has been somewhat dissatisfied with the 1962
statutory grant of limited power to oversee local administration;
probably his authority in that respect will be further enlarged in the
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THE OMBUDSMAN IN DENMARK
course of time. In 1964 he became enmeshed in controversy with the
legal profession because he had entertained complaints against
lawyers who had been designated and paid by the Ministry of Justice
to serve impecunious clients. In his view they were “persons acting
in the service of the State” and therefore within the Ombudsman’s
reach. He even intimated that lawyers as a class might be regarded
as suitable objects of his concern since they perform a public func-
tion with a status derived from law. Discussion between the Ombuds-
man and the chairman of the Bar Association produced a retreat but
not a complete surrender. The Ombudsman did agree that future
complaints should in the first instance be handled by the Bar Asso-
ciation and he did withdraw any pretence of present jurisdiction over
the entire profession.63
What the Ombudsman does best. The Ombudsman’s greatest
effectiveness appears in cases that involve departures from accepted
norms, and not in cases where he must deal with clashes of values. He
can usefully dispose of dissatisfactions engendered by an official’s
having strayed from common patterns of rightful conduct. Such
cases, important though they may be to the persons immediately con-
cerned, are likely to have petty dimensions.64 They touch individuals
03 A letter from the Ombudsman to the Advokatradet, dated June 10, 1964,
reads in part as follows: “At a meeting with the chairman… we agreed upon
the following lines concerning the Ombudsman’s jurisdiction over lawyers:
“We agreed to avoid bringing the question to a head, but to consult one
another if doubtful issues arise.
“From my point of view it was essential to seek agreement that the
Ombudsman could sometimes be of assistance in dealing with complaints
against the conduct of lawyers who had been designated to render free
legal aid to clients.
“If such cases arise hereafter, the Ombudsman will in each instance refer
the complaint to Advokatradet, with a request to be informed about what is
then done in that matter. Should problems emerge that seem suitable for
special discussion, this can be arranged at the time.
“As for the conduct of members of Advokatradet in general, I am willing
to disclaim jurisdiction (as, in fact, has been the actual practice in the
past), but I should nevertheless like to be informed about Advokatradet’s
attitude toward complaints that may arise, so that I may be in a position
to initiate negotiations with Advokatradet if’special reasons appear.
“These understandings should eliminate the possibility of future con-
flict, but each question that may arise can be taken up for negotiation if
the circumstances of a particular case warrant.”
64 Examples taken at random from the Ombudsman’s report for 1962: a) A
disabled person applied in January for special public assistance in order to obtain
a telephone. A favorable decision on his application was made in March, but was
not communicated to him until June, negotiations between the public authority
and the telephone company having meanwhile occurred. The Ombudsman thought
38
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[Vol. 12
and not society in the broad. In a sense, the Ombudsman is at his best
when, like an American labor arbitrator, he deals with concrete
grievances involving a claimed disregard of established rights. When
cases lose personal focus, when they involve the community, the Om-
budsman’s touch is far more tentative and the chance of producing
a concrete result is greatly lessened. 65
Estimates of the Ombudsman’s success. In the manageably nar-
row cases –
the ones that involve applying accepted principles to
unclear facts and the ones in which a sage jurist can enunciate new
principles that commend themselves so quickly that they seem to
have been accepted already as “natural justice” –
the Ombudsman’s
that the time lapse was in this instance justifiable, but that the applicant should
have been more speedily informed about what was happening (p. 38). b) A
prisoner complained that money taken from his cell so that the police could
investigate whether he had gained it legally, had not been returned to him until
nine months after the police investigation had in fact ended without producing
any evidence of illegality. The Ombudsman said that the prisoner’s property
should have been returned more promptly, and the police apologetically agreed
) An institutional employee had made a written request that had been
(p. 30).
forwarded by her immediate superiors to the Ministry concerned. The Ministry
made a negative response to the request. The employee was informed of this by
telephone. She complained to the Ombudsman that she was entitled to have a
written rejoinder to her written letter. The Ombudsman agreed (p. 38).
65 The 1962 report provides a good example at p. 52. Professor Steen Eiler
Rasmussen, one of Denmark’s leading authorities in the field of city planning,
complained to the Ombudsman that Copenhagen had not been forced to adopt
suitable plans, as required by law, for developing the Slotsholmen area, in which
are located the parliament building, the stock exchange, and many public
offices and in which a new governmental office structure had been commenced.
Contending also that the Ministry of Housing could not impartially review deci-
sions of the Copenhagen municipal authority concerning state-owned sites, he
urged that such decisions be referred to an external board of experts. The Om-
budsman wrote a long essay on the history of city planning laws and their
administration in Denmark, reviewed the literature on the subject, found long-
standing discord between law and practice, concluded that he could not criticize
the absence of planning for Slotsholmen, and requested the Minister of Housing
to broaden the terms of reference of an already existing study committee so that
it might consider how area planning should be done. As for the suggestion, that
the Ministry of Housing should give way to some other appellate body, the
Ombudsman engaged in a political science discussion, concluding that inevitably
the State may have a proprietary interest in matters that must in the end be
decided by public authorities of one kind or another, but the authorities should
not be deemed incapable of making just decisions on that account.
One’s imagination staggers at the thought of the Ombudsman’s deciding
otherwise than he did. He could not singlehandedly remake Copenhagen or
supplant one appellate authority by another that would have to be endowed
with powers not yet in existence.
No. 1]
THE OMBUDSMAN IN DENMARK
work seems to have been almost spectacularly successful from the
standpoint of citizen and official alike.
“The Ombudsman is squeezing the arrogance out of government,”
said a prominent social scientist. “Decisions are quicker all down the
line,” said an attorney. “The Ombudsman is a safety valve and all
of us feel more satisfied than we did before,” said the head of a
major women’s organization. “The civil service exercises power more
justly, it is prompter, its methods are fairer,” said a business leader.
“The Ombudsman has done us a lot of good. The public is likely
to accept his decision and to stop grumbling at us after he has upheld
us, as he does most of the time,” said a ministry official who is also
an official of a superior civil servants’ union. “We have about 20,000
cases a year here, and there is bound to be some dissatisfaction with
decisions. The Minister personally interviews complainants one day
each week, seeing about twenty of them on each of those days. We all
work hard on complaint cases, and still the dissatisfaction remains.
Then people go to the Ombudsman, whom they regard as sitting on
top of all the ministries. He gives his opinion and that’s the end of
the matter. Everybody seems to be satisfied once he has spoken,”
said an official in a second ministry. “Some persons have come in
here again and again and have gone away without ever feeling they
had received justice. Then they want to know where else to go and we
suggest the Ombudsman. He makes a decision, maybe exactly the
same as ours, but they respect him and accept what he says as just
and as final,” said yet a third ministry official.
Since remarks like these, uttered with obvious sincerity by both
private persons and public servants, could easily be multiplied and,
since contrary sentiments are simply not heard, perhaps they should
be accepted unhesitatingly. Their rather intangible underpinnings do
nevertheless raise tiny uncertainties. For example, the business leader
quoted above had never heard of a businessman who had turned to
the Ombudsman; he personally knew nobody of any description who
had done so; and he could not think of a single thing that might in
any way serve to illustrate the asserted improvements in civil ser-
vants’ justice, promptitude, or methods. The governmental spokesmen
who say that the Ombudsman’s words transform malcontents into
cooing doves have no evidence of this fact other than that com-
plainants fall silent. This quietude, for all anyone surely knows, may
reflect despairing realization by still disgruntled passengers that they
have reached the end of the line without yet arriving where they
had wanted to go.
In the absence of any scientific sampling of the opinions of
unsuccessful complainants, estimates like those quoted above may
McGILL LAW JOURNAL
[Vol. 12
be accepted. But they remain only estimates until confirmed by fuller
evidence than is now available.
An outsider, scantily acquainted with Denmark, is poorly situated
to offer a confident evaluation of what the Danish Ombudsman has
accomplished. A few diffident impressions are, however, offered in
conclusion.
First, ombudsmanship works in small ways its wonders to per-
form. Too exalted expectations are a disservice to the institution. The
Ombudsman can be important without constantly dealing with im-
portant matters, just as judges are important though they deal
chiefly with picayune conflicts. An Ombudsman’s accomplishments
are likely to be interstitial. He cannot create a solid structure of pub-
lic administration. He can only do a bit of patching and sewing of
minor rents in a basically sound fabric.
Second, the Ombudsman’s greatest role is that of teacher rather
than governor. He does not command. He persuades. Like most teach-
ers, he will have to repeat his lessons often for the benefit of the slow
learners; and even then some of his pupils will fail to absorb them.
In any event, he cannot perform the work of an entire faculty. He
succeeds as he does in Denmark because that country’s civil servants
have many other good teachers, notably their own colleagues and the
high traditions of Danish officialdom.
Third, the Ombudsman should not be viewed as an acceptable
substitute for parliamentary or ministerial responsibility. Because he
is so readily identifiable, so embraceable as a kind of father-figure,
some of his countrymen may call upon him for too large tasks of
statesmanship; and, being devoted to rendering public service, he may
be tempted to respond. The broad contours of public administration
how much power is to be conferred, for what purposes, upon whom,
–
to be exercised by what means –
are primarily questions for politi-
cal determination. No matter how able an ombudsman may be, no
matter how venerated he may be by the public, he cannot supplant
the political processes that in the end control the administration of
public affairs.
No panacea for the cure of governmental ills exists. The greatest
injustice to the Ombudsman would be to regard him as the possessor
of a cure-all.
