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order to be valid, and there is no relevant case law or Ombudsman practice in
relation to the issue. It was therefore a question which the Ombudsman had to
answer without any tangible sources of law.
An obvious starting point was the generally recognised principle of administrative law that particularly intrusive administrative decisions should be communicated in writing (or at least subsequently confirmed in writing). In addition, an
order to remain silent is in principle comparable to a tightening of the provisions
of the Penal Code on the obligation to observe secrecy, targeting a single individual only. General principles on the promulgation of legislation could therefore strongly suggest that an order to remain silent must be imposed in writing
in order to prevent any doubt subsequently arising about the existence, content
and scope of the order.
In addition, it could be said that in the very special situation in which he found
himself, Henrik Sass Larsen needed full documentation of and certainty about
his legal position. It also seems unlikely that the courts would ultimately recognise an order to remain silent which did not exist in writing.
There was therefore no doubt that the order to remain silent should have been
imposed in writing. I informed the Prime Minister’s Office and the Ministry of
Justice that the failure to do so must be regarded as a matter for severe criticism.
The question then was whether the order to remain silent must be regarded as
invalid in these circumstances.
Ultimately, this question would have to be decided by the courts during criminal proceedings against Henrik Sass Larsen for breach of the order. However,
I stated that I regarded it as extremely doubtful whether the order could be
valid. I therefore asked the authorities to reconsider the case. This did not take
very long, for a few hours after the publication of my statement, the Ministry
of Justice revoked the order and Henrik Sass Larsen was now able to explain to
the public why he had had to withdraw as a ministerial candidate.
The law also applies in the dark
In many ways, this was a unique case. For instance, it is not common for a
member of the Danish Parliament to lodge a complaint with the Ombudsman
about the country’s Prime Minister and Minister of Justice (who even belong to
the same political party). It is also not common for the Ombudsman to have to
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