On this site you find documentation and analytical comments on
- The Danish Ombudsman Jørgen Steen Jørgensen’s treatment of the case (paragraphs 1-8);
- The problematic character of a state institution that accepts and thus legitimates violation of fundamental human rights in a democratic state (paragraphs 9-11).
1. The Ombudsman takes up the case
Telegram by the Ritzau press agency (23 February, 2012) announcing that the new Ombudsman Jørgen Steen Sørensen, who assumed his office three weeks ago on 1 February, 2012, has decided to take up the Koldau case upon his own initiative stating “that the case raises a number of central and fundamental questions about the public sector employees’ right to freedom of speech.”
2. A Danish Lawyer’s Objection to the University’s Methods and the Dean’s Indifference with Legal Rules
- Objection of lawyer Soon-Ah Sigsgaard (Dansk Magisterforening) to dean Mette Thunø’s admonition and its illegitimate charges (2 March, 2012), sent in copy to the Danish Ombudsman.
- Answer of dean Mette Thunø to Soon-Ah Sigsgaard’s objection, 14 March, 2012.
- Professor Linda Maria Koldau’s comment on the dean’s answer (19 March, 2012).
The union’s lawyer Soon-Ah Sigsgaard agreed with professor Linda Maria Koldau that dean Mette Thunø simply ignored the legally correct objection, thus continuing an illegal management practice (telephone conversation of 19 March, 2012).
However, lawyer Sigsgaard tacitly accepted the dean’s conduct and from 21 March onwards advised prof. Koldau to subject to the university’s illegitimate threats and chicaneries in order to avoid dismissal.
Thus, the union Dansk Magisterforening denied prof. Koldau the juridical support she as a union member was entitled to.
German translation of all three documents: click here.
3. Prof. Koldau’s Official Complaint
Upon the ombudsman’s request, prof. Linda Maria Koldau sent her official complaint against Aarhus University on 4 March, 2012:
Complex 1: The Violation of the Right to Freedom of Speech
Complaint: read here
Enclosed: The admonition – Institute director Niels Lehmann’s negative sanctions – The university’s construction of an illegitimate confidentiality
Complex 2: Contestation of the university consultant’s examination and reports
Complaint: read here
Enclosed: Contestation – Letter to dean Mette Thunø from 22 June 2011 proposing an unbiased expert as consultant – The university’s illegitimate attempt to define the reports as “psychological examinations” and thus as confidential)
Complex 3: Flawed Management, chicanery and unfair working conditions at Aarhus University
Complaint: read here
Enclosed: Chronological table of Koldau’s experiences at Aarhus University – Table Agreements upon hiring and the real situation – Summary of the Koldau Case – Expertise on Koldau in the headhunting process – A flawed contract – Protocol and contestation – The critical statements of two department colleagues about the state of Musicology at Aarhus University: Erling Kullberg – Thomas Holme Hansen
German translation of the three complaints
4. Institute Director Niels Lehmann’s Account and Professor Koldau’s Comment on this Account
On 12 March, 2012, ombudsman Jørgen Steen Sørensen requested prof. Koldau to send him a comment on the account institute director Niels Lehmann had given of the case.
- Lehmann’s account is a public document and can thus be accessed by Danish citizens via the Ombudsman’s office.
- Prof. Koldau’s Danish Commentary. This commentary offers the entire documentation and testimonials that the dean’s consultants preferred to ignore. Section A and B offer an clear analysis of the management’s strategies to cover up its own mistakes and the violation of the employees’ rights at Aarhus University.
Since it is not the intention of this documentation to pillory individual members of the academic staff at Aarhus University, names have been blackened. However, those persons who have a distinct management office – such as the department director, the institute director, the dean and the rector – are mentioned with name, according to the public responsibility they have and are paid for.
- A German translation of section A and B can be downloaded here.
5. Further Complaints against Aarhus University
On 26 February, 2012, the ombudsman’s assistant invited prof. Koldau to send further complaints should the university act against rules and administrative observance in the course of her case. Accordingly, prof. Koldau sent to further complaints on 28 March and 13 April 2012:
- Complaint about the university implementing the admonition and the charges while the ombudsman is examining the case (which goes against costum);
- Complaint about the university’s illegitimate ultimatum threatening to dismiss prof. Koldau if she does not apologize to the three colleagues she accused of bullying;
- Complaint about institute director Niels Lehmann and department director Pia Rasmussen having violated juridical confidentiality in her case.
On April 9, the Danish journalist Heikki Yding (DR Østjylland) filed a complaint to the Ombudsman, stating that Aarhus University had denied him access to public documents according to the Offentligshedlov (the Danish set of laws regarding the obligation of the state administration to lay open its actions to the public).
The Ombudsman decided that the complaint was justified and exhorted Aarhus University to give Heikki Yding access to the documents.
Violating the Offentligshedlov in an additional instance, Aarhus University had not informed prof. Koldau about Heikki request and asked her if she consented to giving the journalist access to documents concerning her case.
The Ombudsman equally decided that Aarhus University thus had violated Koldau’s rights according the Offentlighedslov.
After professor Koldau had consented to grant journalist Heikki Yding access to the demanded documents, it took Aarhus University two further weeks to finally send the documents to the journalist Heikki Yding.
On 18 April, 2012, Aarhus University’s chief jurist Per Møller Madsen apologized to professor Koldau for the “misunderstanding” on part of Aarhus University regarding the the university’s failure to inform her about the request of Heikki Yding.
While Aarhus University in this less significant eventually followed the Danish law, professor Koldau never received an apology from Aarhus University regarding the violation of her numerous other rights – among those five fundamental human rights – on part of the university.
6. The Ombudsman Drops the Case Without Examining It – Publishing a False Statement About a “Mutual Agreement” and Going Against Danish Law
On 16 May, 2012, Ombudsman Jørgen Steen Jørgensen decided to drop the case without examining Aarhus University’s violations of prof. Koldau’s right to freedom of speech and several other fundamental rights.
- By resigning from her position, professor Koldau had allegedly signed an “agreement” with Aarhus University regarding her case. Thus, it is not necessary to examine the violations of professor Koldau’s rights on part of the university management.
- The public employees’ right to freedom of speech has sufficiently been clarified.
- He deems that it is more important to use the resources of the Ombudsman Institution for other cases.
In his official statement on the website of the Ombudsman Institution, Jørgen Steen Jørgensen states that Koldau should have signed a “mutual agreement” with Aarhus University regarding her case.
This is a false statement. Under the threat of immediate dismissal, professor Koldau was on 16 April, 2012, forced by Aarhus University to sign an agreement that had nothing to do with her case against Aarhus University, but invariably regarded her working conditions in the period May – December, 2012.
Nothing in this agreement refers to the university’s illegal admonition and charges against Koldau as a negative sanction for her public criticism. She has thus never signed a “mutual agreement” with Aarhus University regarding her case.
In an open letter to the Ombudsman, professor Koldau protested against this false statement which Ombudsmand Jørgen Steen Jørgensen not only had published on his web site, but also sent as a press release to the Ritzau press agency. Her protest was rejected by the Ombudsmand.
As it turned out in May 2013, that is, one year after the questionable decision of the Ombudsmand, he had in fact violated Danish law with his decision.
If an employee resigns “voluntarily” because of massive chicaneries on part of the employer, this counts as “unfair dismissal” on part of the employer. Accordingly, the resignation of professor Koldau was an “unfair dismissal” – and would have obliged Ombudsman Jørgen Steen Sørensen to take up and examine her case.
As law expert, the Ombudsman knew this – just as the union Dansk Magisterforening did. They made sure that neither professor Koldau nor the Danish public were informed about this legal obligation – and their failure to live up to it.
Ombudsman Jørgen Steen Sørensen, who assumed his office twelve days before Aarhus University’s violations of prof. Koldau’s rights became public in the media, is a honorary professor at Aarhus University.
7. Rector Lauritz Holm-Nielsen’s Response to Ombudsman Jørgen Steen Jørgensen’s Decision
On the Aarhus University website, rector Lauritz Holm-Nilsen published a comment to the Ombudsman’s decision.
It is telling in Nielsen’s formulation of his comment that the Koldau Case suddenly has been turned into a “personnel case against Linda Maria Koldau”.
Throughout the entire debate, the university management insisted upon calling the Koldau case a “personnel matter”, thus denying to comment on the numerous questions and objections by journalists, academic staff members, students and the public.
A personnel matter, however, cannot be directed against a person – is this formulation a Freudian slip on part of rector Holm-Nielsen?
8. Media Response to Ombudsman Jørgen Steen Jørgensen’s Decision
- Leder: Ubesvarede spørgsmål (leading debate article on the Ombudsman’s avoidance to take up fundamental questions of the public employee’s rights) by Lise Richter, Dagbladet Information, 21 May, 2012 (German translation: click here)
- Ombudsmanden, Koldau og Den Store Bastian (detailed analysis of the Ombudsman’s decisions highlighting Jørgen Steen Jørgensens avoidance to take up the question of the right to freedom of speech and showing that Denmark offers a questionable legal security to its citizens) by associate professor Claus Emmeche, Copenhagen University, on the blog Forskningsfrihed?, 19 May, 2012 (German translation: click here)
- Aarhus Universitet og det frie ord (discussing the Ombudsman’s questionable decision and asking if he, a honorary professor at Aarhus University, really can be regarded as unbiased in a case against Aarhus University) by Anne Albinus on the blog Anne Eftertanke, 20 May, 2012 (German translation: click here)
- Leder: Låg på leading debate article in Jyllands-Posten, 22 May, 2012
- Ombudsmand vildleder om Koldau-sag, open letter by professor Linda Maria Koldau requesting him to correct the false statement that she should have signed a “mutual agreement” with Aarhus University regarding her case, published on the blog Forskningsfrihed?, 26 May, 2012
- Rettigheder kan frit krænkes – Ombudsmanden, Forskerforum og de offentlige ansattes retssikkerhed by professor Linda Maria Koldau, Aarhus University, on the blog Forskningsfrihed?, 30 August, 2012
9. Five Violations of Fundamental Human Rights in the Koldau Case
On 19 July, 2012, Linda Maria Koldau summarized the violations of five of her fundamental rights by Aarhus University in a petition to the European Parliament.
She had amply documented these violations in her complaints to Ombudsman Jørgen Steen Jørgensen. The Danish Ombudsman decided to ignore these violations, stating publicly that the “juridical status of the public employees’ right to freedom of speech has been sufficiently clarified”.
He thus publicly acknowledged that a professor at a public institution could receive an admonition with absurd and humiliating charges because of her “writings in the media” (dean Mette Thunø on 10 January, 2010).
At the same time the Ombudsman made clear that he does not deem the university’s violation of an employees other fundamental rights – such as fair working conditions and equal treatment – worthy an examination and a reprimand.
Since the Koldau Case just is the tip of the iceberg in violations of basic rights of the academic staff at Danish universities, prof. Koldau decided to inform the European Parliament about these violations, referring to the mail debates and numerous mails and comments by persons who had had similar experiences at Danish universities.
Read the petition here (in English language).
Prof. Koldau’s petition was registered by an administrative staff member with a Danish name. On 12 January 2013, prof. Koldau was informed by a staff member of the European Parliament that her petition would not be taken into consideration by the European Parliament since this specific case should be treated in the State of Denmark.
Since the Ombudsman of the Danish Parliament – who in Denmark is regarded as the highest juridicial authority regarding the conduct of public institutions against citizens – already had decided on 16 May, 2012, that Aarhus University’s violation of prof. Koldau’s rights need not be examined, prof. Koldau did not consider it commensurable to return her rightful complaint to the State of Denmark.
10. The Fundamental Right to Fair and Just Working Conditions – Violations Openly Accepted by the Danish Ombudsman
According to the Charter of Fundamental Rights of the European Union every European citizen has a fundamental right to Fair and Just Working Conditions (Art. 31).
In her complaint to the Danish Ombudsman, prof. Koldau provided ample documentation that Aarhus University had continually violated this right in her case since her hiring in 2009.
However, Ombudsman Jørgen Steen Jørgensen entirely ignored this evidence that public employees at Aarhus University are exposed to the violation of a fundamental right.
On 10 February, 2012, the Danish Minister of Education, Morten Østergaard stated in an official document:
“The university management must not dismiss employees, degrade them or exert other negative sanctions against them just because they have – within the limits of current legislation – spoken out publicly. This has amongst others the Ombudsman of the Danish Parliament confirmed several times.”
In his statement, Morten Østergaard referred to the former Ombudsman, Hans Gammeltoft-Hansen, whose public office ended on 31 January, 2012.
The new Ombudsman, Jørgen Steen Jørgensen, who assumed his office on 1 February, 2012, in contrast stated in a public discussion on 15 June, 2012, on the island of Bornholm:
“When a public employee is being dismissed because of publicly voiced criticism, we [i.e. the institution of the Ombudsman] can act. But we cannot do anything against the chicaneries the public employee is exposed to at their place of employment because of their public statements.”
This means that
1. Ombudsman Jørgen Steen Jørgensen has introduced a striking change in the interpretation of law since Minister Morten Østergaards public statement from 10 February, 2012.
2. Ombudsman Jørgen Steen Jørgensen, who in Denmark is being regarded as final authority regarding the question of the legal security of public employees, goes against the European Convention of Human Rights in his open acceptance of chicanery at a working place in Denmark.kjlkljk
11. The Institution of the Ombudsman – By No Means a Token of Democracy
The following problem of legal security against law violations by public institutions in a democratic state is discussed in more detail in Jante Universitet vol. 3, episode “Forlig”. A specialized juridicial study on the institution of the ombudsman and its relation to legal security in a democratic state is still a desideratum.
Internationally and in Denmark, the institution of the ombudsman is regarded as the very incarnation of democracy and public responsiveness. This was in fact the explicit statement of Ombudsman Jørgen Steen Jørgensen when he assumed his position in February 2012 (cf. his article Sidste led I borgernes retssikkerhed in Politiken from 27 April, 2012).
However, few people in Scandinavia and internationally realize that, at least in Denmark, the institution of the Parliament’s Ombudsman by no means does follow up the principles of legal security in a democratic state.
In Germany and many other European countries, there exist administrative courts. Here, citizens whose rights have been violated by public offices, can file a lawsuit, which then is treated according to written law by judges of the administrative court. The judges’ decisions are legally binding.
In Denmark, an administrative court does not exist. If a public institution – such as a university – violates the laws of a citizen, the citizen has no chance sue the institution for this violation at a court that would be specialized in administrative law. They can of course sue the institution at an ordinary court – however, they will (as has happened in numerous cases of universities’ violating their staff’s rights) hear from their lawyer: “You are right – but you will never be granted your right in court. And you will lose a lot of money on it.” In some cases, Danish university staff members have nevertheless sued their employer – sometimes the files would “disappear” under strange circumstances, and usually the case would end in an “agreement,” that neither restored the staff member’s basic rights, nor made up for the loss of a career. This has nothing to do with the principles of a democratic state with a sound legal system.
Only in extreme cases – preferably if they become public in the media – the citizen may be so fortunate to have their case taken up by the Ombudsman of the Danish Parliament.
The citizen’s chances to be granted their rights are then dependent on a single person’s arbitrations – without any right to appeal against the ombudsman’s decision.
It must be underlined that a citizen only has a chance to have their case examined by the Ombudsman if they “walk the plank” – which means that they must let themselves dismiss by the employer (statement by administrative expert professor Heine Andersen, Copenhagen University, in a private mail from 21 May, 2012). Only then do they have a chance to have their case taken up. This was explicitly confirmed by Ombudsman Jørgen Steen Jørgensen on 15 June, 2012 (see above, § 10).
Any attempt to protect themselves against the employer’s chicaneries – up to the decision to resign or to take early retirement – is in contrast regarded as “mutual agreement”, which the institution of the Ombudsman takes as occasion to drop the case.
This happened not only in the case of professor Linda Maria Koldau, but likewise in the case of professor Helmuth Nyborg (Aarhus University) and numerous other public employees in Denmark.
Translated into clear words the exhortation to “walk the plank” means:
Public employees must accept chicanery and degradation at their working place and eventually go through the public humiliation of being fired – which in other European countries means a definite end to their chances to find a job again – in order to have the vague chance that the Danish Ombudsman will look at their case.
This goes against internationally acknowledged human rights.
If the Ombudsman however should end up taking a decision in favour of the citizen’s rights, this decision is not legally binding. It is a recommendation, nothing more.
In any case, the Ombudsman’s decision does not entitle a citizen whose rights have been violated by a public institution, to receive compensation for the violations and damages the public institution has inflicted upon them.
This goes against the basic rules of a democratic society.