On September 1, 2021, the Danish Supreme Court ruled that a violent street gang association, Loyal to Familia, was unconstitutional because it lacked a legal purpose, and ordered it dissolved. (Danish Supreme Court, Sept. 1, 2021, Sag 123/2020.) The case was highly unusual in that it was the first time since 1924 that the Supreme Court had ordered an association dissolved. (Sag nr. 53/1924.)
The Danish Constitution protects freedom to form associations in § 78, allowing for the dissolution of associations under limited circumstances. Specifically, § 78 provides as follows:
§ 78. Stk. 1. Citizens have the right, without prior permission, to form associations for any lawful purpose.
Stk 2. Associations that act or seek to achieve their goals by violence, incitement to violence or similar criminal influence on those who think differently [than members of the association] will be dissolved by means of a court judgment.
Stk 3. No association can be dissolved by a government measure. However, an association can be banned provisionally, but an action must be brought against it immediately until it is dissolved.
Stk 4. Cases concerning the dissolution of political associations may be brought before the Supreme Court of the Kingdom without special permission.
Stk. 5. The legal effects of the dissolution shall be specified in more detail by law.
Procedural Background
In September 2018, the police in Copenhagen, Denmark, relying on § 78, stk. 1, 2, and 3 of the Constitution, issued a provisional ban on Loyal to Familia, calling the organization unconstitutional. Before the provisional ban was issued, the Danish minister for justice, following a recommendation from the attorney general, had initiated a process for having Loyal to Familia dissolved.
The dissolution of Loyal to Familia was upheld by the district court and later the Østre Landsret Appeals Court because of its manifest criminal activities and purpose. Persons associated with the organization argued that they were not a criminal gang but a “brotherhood.” The Supreme Court heard the case on appeal and ordered the association dissolved.
Supreme Court Decision
Because the term “association” is not defined in the Constitution, the Supreme Court first established that Loyal to Familia was an association on the grounds that it had member lists, a set structure with different divisions, a hierarchy of leadership, and rules that members needed to follow. It thereafter went on to establish on the basis of fact-finding by the court of appeals that the purpose of the group, which included engaging in serious criminal activity, violated § 78, stk. 1 of the Constitution. It specifically noted that
[a]ccording to the Court of Appeal’s findings, it must be assumed that, as a general part of Loyal to Familia’s activities, [the group] has committed extensive and serious crimes. The Supreme Court thus agrees that the association has an illegal purpose as mentioned in § 78, stk. 1 of the Constitution and may therefore be dissolved under this provision.
The appeals court had noted that the organization had more than 100 members who paid membership fees and several of whom had been imprisoned for violent crimes.
The Supreme Court reversed the court of appeal’s finding with regard to § 78, stk. 2 of the Constitution, however, by finding that it had not been proven that the group violated § 78, stk. 2 — that is, that its actions had been conducted with the aim “to influence those that think differently.” Thus, the group could not be dissolved with reference to § 78, stk. 2 of the Constitution.
As a result of the Supreme Court upholding the dissolution of the association, it is illegal to promote Loyal to Familia and to wear its insignia (LTF) on clothes, as specified in § 132a of the Danish Criminal Code (Straffeloven).
The Supreme Court verdict is historic by virtue of confirming that street gangs and other violent organizations may be legally dissolved and banned if proven that they lack a lawful purpose.