Grundlovskomitéen 2003 vedrørende Irak-krigen
ved formand Birgitte Albrechtsen som mandatar for
Jørgen Vogelius og
Johan Mortensen Kirkmand
og uden for mandatarforholdet
Nicolas E. Fischer
Anne Regitze Frisenette
statsminister Lars Løkke Rasmussen
By decision of 21st March 2003 the Folketing (Parliament) gave its consent according to Section 19, para. 2, of the Constitution, to place a Danish military force at the disposal of a multinational operation under American leadership.
A group of citizens, represented by the “Constitution Committee on the Iraq War” sued the Prime Minister. They alleged that the decision of the Folketing on the Danish participation in the war violated Section 19, para. 2, of the Constitution, since the war against Iraq was illegal according to international law.
The court of first instance (The Eastern High Court) had dismissed the lawsuit.
The Supreme Court confirmed the judgment, since the appellant had no right of action with regard to the lawsuit.
The Supreme Court stated that none of the appellants complied with the general requirements under Danish law with regard to right of action. According to the general rule a plaintiff must show a legal interest in the outcome of the case arising from a concrete legal dispute. None of the appellants are affected by the decision of the Folketing in any other way than the population in general. This is true also in respect of the appellant who had suffered a serious personal loss since his son had been killed during military service in Iraq. The Court noted in this context that the son participated pursuant to a later decision of the Folketing and under an agreement of voluntary military service in Iraq.
The Supreme Court considered whether the lawsuit could be admitted to be tried on the merits irrespective of the lack of legal interest under general rules, as was the case in the Supreme Court’s judgment of 12th September 1996 concerning the right of action on the Maastricht Treaty. The Court underlined that the decision of the Folketing concerned foreign policy where the Government according to the Constitution has a direct competence to act on behalf of the realm. The court furthermore underlined that the decision of the Folketing neither entailed legal duties for Danish citizens in general, nor – in respect of the question of legal standing – could be considered to be of vital importance to the Danish population in general.
The Supreme Court added that there is no particular ambiguity concerning the understanding of Section 19, para. 2, or Section 20 of the Constitution. The Court further pointed to the fact that art. 6 of the European Convention of Human Rights does not give a party a right to have case decided on the merits if the party has no legal standing.