The International Human Rights Framework on the Right of Peaceful Assembly
Denmark is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Denmark is also a State Party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, Denmark is a State Party to the 1950 European Convention on Human Rights. Article 11 governs freedom of assembly and association:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
The Domestic Legal Framework on the Right of Peaceful Assembly
The 1953 Constitutional Act of Denmark guarantees the right of peaceful assembly. Section 79 of Part VIII provides that:
Citizens shall, without previous permission, be at liberty to assemble unarmed. The police shall be entitled to be present at public meetings. Open-air meetings may be prohibited when it is feared that they may constitute a danger to the public peace.
Police must be given 24 hours notice if the assembly is staged in a public space and may only be prevented from going ahead if the police believes this is necessary to prevent public disorder. According to Section 4 of the 2004 Police Act (Act no. 444 of 9 September 2004):
1. It is the task of the police to prevent any risk of disturbance of public order and any danger to the safety of individuals and public security.
2. In so far as it is considered necessary to prevent danger as mentioned in subsection 1, the police may clear, close off, and establish access control to certain areas.
Bill L49 was adopted in 2009 to deal with riots and large demonstrations. One of the main elements was to extend the limit on preventive detention from six hours to twelve.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Chapter 4 of the 2004 Danish Police Activities Act (as amended) regulates the use of force by the police in Denmark. Section 16 of the Act provides:
(1) The police may use force only if necessary and justified and only by such means and to such extent as are reasonable relative to the interest which the police seek to protect. Any assessment of the justifiability of such force must also take into account whether the use of force involves any risk of bodily harm to third parties.
(2) Force must be used as considerately as possible under the circumstances and so as to minimise any bodily harm.
Under Section 80 of the Danish Constitution, it is specified that:
In the event of riots the armed forces may not take action, unless attacked, until after the crowd has three times been called upon to disperse in the name of the King and the law and such warning has gone unheeded.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
With respect to firearms, Section 17(1) of the 2004 Danish Police Activities Act (as amended) allows firearms to be used:
(i) to avert an ongoing or imminent dangerous assault on a person
(ii) to avert other imminent danger to the lives of persons or of such persons incurring grievous bodily harm
(iii) to avert an ongoing or imminent dangerous attack on important institutions, companies or facilities
(iv) to secure the apprehension of persons who have or are suspected on reasonable grounds of having commenced or committed a dangerous assault on another person unless the risk that such persons will commit another such assault is deemed not to exist....
This is more permissive than international law allows.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2016 Concluding Observations on Denmark, the Human Rights Committee did not address the right of peaceful assembly. The 2015 Universal Periodic Review of Denmark under the UN Human Rights Council also did not address the right of peaceful assembly.
S, V, and A v. Denmark (2018)
In its judgment in this case, the Grand Chamber of the European Court of Human Rights held that in exceptional circumstances, preventive detention of individuals planning to attend a football match would be permissible. This would be where the authorities have actual knowledge of intent on the part of specific individuals to engage in or incite acts of violence during a particular assembly, and where other measures to prevent violence occurring will be clearly inadequate.
Views of Civil Society
In early 2021, Danish civil society organisations are sounding the alarm over a draft law called the ‘Security for all Danes’ (“Sikkerhed for Alle Danskere”) that will give more power to the police to take action against “insecurity-creating behaviour”. CSOs are especially concerned by the proposal which makes provision for police to issue a general ban on staying in a geographically defined area for 30 days if a group of people exhibit “insecurity-creating behaviour” in the area. Those breaking the new rules will initially be punished with a high fine of DKK 10,000 (around US$1,600) and, for a second offence, a prison sentence of up to 30 days. CSOs are also concerned that these measures will disproportionally affect the freedom of assembly of minority groups.