3. State Party Reports
[Parts of State party report relating specifically to relevant legal minimum ages, and articles 37 and 40]
III. DEFINITION OF THE CHILD
30. In Denmark, persons under the age of 18 years do not have full legal capacity and are described as minors. In Denmark, minors do not have the right to vote and do not have full legal capacity to decide personal and property matters.
37. Under the Criminal Code, children under the age of 15 years who commit criminal acts cannot be punished. Children under the age of 15 years cannot be deprived of liberty under the rules of the Danish Administration of Justice Act on arrest or remand in custody, nor may they be sentenced to imprisonment as these measures imply a charge or a conviction for a criminal offence. In the case of young persons aged 15-18, the Administration of Justice Act further provides for the possibility of withdrawing the charge of a criminal offence.
38. Under the Administration of Justice Act, every person has a duty to give evidence in court as a witness. A child may thus also be heard as a witness, if the child is capable of making a reasonable statement. If the child is under 15 years, it is for the court to decide in what manner and by whom the examination is to take place. In this connection, the court may call in a representative of the social authorities or any other appropriate person to assist during the examination.
39. In criminal cases it is, in practice, permitted in a number of cases to hear the testimony of a child as early as possible during a court examination, so that the evidence is subsequently documented during the trial. In trials for sexual offences it has become customary in recent years - and accepted by the courts - to video-record the child's evidence as soon as possible after the offence. The defence counsel for the accused person follows the evidence on a monitor in an adjacent room and may request the police to ask additional questions. The video recording of the evidence is used during the trial so that the examination of the child in court as a witness may often be avoided.
40. Under the Criminal Code, there is an absolute prohibition against sexual intercourse and other sexual relations with a child under the age of 15 years. If there is a special fiduciary relationship or dependence between the child and the adult, the age limit is higher.
V. CIVIL RIGHTS AND FREEDOMS
H. The right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (art. 37 (a))
106. Denmark has no capital punishment or corporal punishment. Under the Danish Penal Code the ordinary sentences in Denmark are imprisonment, mitigated imprisonment or fines. A term of imprisonment is imposed for life or for a term not less than 30 days or more than 16 years. The punishment for acts committed by a person under the age of 18 years must, under the Penal Code, not exceed imprisonment for a term of 8 years. As mentioned above, a person in Denmark acquires criminal liability at the age of 15 years.
107. Denmark has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Torture or other cruel, inhuman or degrading treatment is punishable as assault or ill-treatment. Neglect or degrading treatment committed by parents, etc. against a child is likewise punishable under section 213 of the Criminal Code.
IX. SPECIAL PROTECTION MEASURES
B. Children in conflict with the law
1. The administration of juvenile justice (art. 40)
305. By way of introduction, it should be observed that Denmark has made a reservation as far as article 40 (2) (b) (v) of the Convention is concerned. This is due to the fact that under existing Danish law, there is no access to appeal against the question of guilt by way of an appeal against cases tried by a jury. Cases tried by a jury are, inter alia, criminal cases where the sanction may be imprisonment for a term of four years or more, in so far as no concurrent sentence is involved in respect of more offences which are not tried at the same time. The cases are tried in the first instance in the high courts, unlike other criminal cases which are tried in the city courts as courts of first instance. The possibility of bringing an appeal is restricted also in minor, less serious cases. Thus the convicted person can only appeal against a judgement made by a city court if the person concerned has appeared during the proceedings and has been given a sentence of more than 20 daily fines, or a fine in the amount of DKr 3,000 or more, or confiscation of objects of an equivalent value, or if other public law sentences have been imposed upon him.
306. The general rules of criminal procedure are found in volume IV of the Administration of Justice Act (cf. (Consolidated) Act No. 905 of 10 November 1992). These rules apply - unless there are special exemptions - to children between the ages of 15 and 17 years. Under section 15 of the Criminal Code, acts committed by children under the age of 15 years are not punishable (cf. chapter III).
307. The prohibition against penalties for acts which did not constitute a criminal offence at the time when they were committed is a fundamental principle of Danish law. The principle follows from section 1 (1) of the Criminal Code (cf. section 3 thereof). Denmark has by statute incorporated the European Convention on Human Rights in Danish legislation. Article 7 of that Convention contains an entirely identical prohibition against penalties for acts which did not constitute a criminal offence at the time when they were committed. Article 7 of the European Convention on Human Rights is thus a part of Danish legislation.
308. The rule of in dubio pro reo (the rule that the guilt of the accused has to be proved to such an extent that there shall be no reasonable doubt in that respect) is - and has always been - a fundamental principle of Danish law. This is also the principle on which the provisions of the Administration of Justice Act regarding the hearing of criminal cases are based, including the provisions regarding the production of evidence and the deliberations of the court. This principle has now also been fixed by statute through the incorporation into Danish law of the European Convention on Human Rights (see art. 6, para. 2 thereof).
309. Where a person is suspected of a crime, the suspect shall be informed of the charge when being interrogated, and that he is not under duty to make any statements (cf. section 752 (1) of the Administration of Justice Act). This also applies to charges against children between the ages of 15 and 17 years. The principle that the child shall be informed promptly and directly of the nature and the cause of the charge has now also been fixed by statute through the incorporation of the European Convention on Human Rights (see art. 6, para. 3 (a)-(c) thereof).
310. Under the Administration of Justice Act, the Minister may lay down rules as regards the cases in which a municipal council is to be informed of and have access to be present in connection with the interrogation of a suspect under the age of 18 years. It follows from the rules laid down that the police are to inform the municipal council if a suspect under the age of 18 years is to be interrogated and the charge concerns an infringement of the civil penal code or any other offence which by law may result in deprivation of liberty. Notification of the interrogation may, however, be omitted if the interrogation is made in direct connection with the suspect being met by the police during - or in immediate connection with - the commission of an offence for which there will be no more severe punishment than a fine. In addition, it is laid down, as stated above, that a representative of the municipal council shall, as far as possible, be given access to be present, at the interrogation, which is made by the police or in court.
311. Under section 730 of the Administration of Justice Act any person who is charged with a criminal offence shall have the right to select a defence counsel to assist him. If the person concerned is under the age of 18 years, the guardian, who is always entitled to act on behalf of the minor, shall be entitled to make such selection.
312. Under the rules of section 731 of the Administration of Justice Act, a public defence counsel will be assigned to the person charged in a number of specified cases if the person concerned has not himself appointed a defence counsel. According to these rules, a defence counsel is to be appointed if the sanction is deemed to be more severe than a fine or mitigated imprisonment. Assignment of a public defence counsel implies that the treasury pays the fee of the defence counsel; however, the person charged has an obligation subsequently to reimburse the costs if he is found guilty.
313. The principle of the independence of the courts is laid down in section 64 of the Constitution. The procedure to be followed in criminal cases is laid down in the Administration of Justice Act. As regards the presence of a legal adviser, reference is made to what is stated above.
314. The demand that proceedings shall be decided without delay is a fundamental principle of Danish law. It follows from the Administration of Justice Act, inter alia, that public prosecutors are to proceed with any case with the speed permitted by the nature of the case, and that the court is to see to it that proceedings are not unduly prolonged. This principle has now also been fixed by statute through the incorporation of the European Convention on Human Rights (cf. art. 6, para. 1 thereof).
315. It follows from the Administration of Justice Act that a person charged is under no obligation to make statements to the police and that the police are to inform the person charged thereof. This also applies to court examinations. In addition, it follows from section 836 of the Administration of Justice Act that the person charged is entitled to call and hear his own witnesses.
316. The right to have the assistance of an interpreter is laid down in the Administration of Justice Act and the fee of the interpreter in connection with the hearing of criminal cases is to be paid by the treasury. The person charged thus has the free assistance of an interpreter, even if he is convicted.
317. In criminal cases the court may decide that court meetings are to be held in camera if the person charged is under the age of 18 years. This possibility ensures special protection of the privacy of the young person. In certain cases which imply a sexual offence, the case will be held in camera when the victim makes statements, if the person concerned so requests.
318. A confidential examination of the matters relating to the person concerned is necessary in order to be able to take such measures concerning the juvenile offender as are best suited to prevent further offences and to ensure the best treatment for the young person. Under the Administration of Justice Act, any information about the matters relating to the person charged that must be deemed to be of importance to the decision of the case regarding the fixing of the sentence or the use of another sanction must be provided. Such an examination generally has to be made when it may be a question of a suspended sentence or withdrawing a charge. (These last measures are often used in connection with juvenile offenders.)
319. If the person charged does not consent to information being provided about his personal situation, this may only take place if the court finds it of essential importance to the decision of the case. The regard for the privacy of the young person forms part of the decision whether a personal examination is to be initiated in spite of the young person's resistance.
320. The person charged is to be subjected to a mental examination if this is found to be of importance for the decision of the case. If the person charged does not consent, such an examination may only take place in pursuance of the court's decision.
321. Under section 722 (1), no. 3 of the Administration of Justice Act, there is special provision for withdrawal of the charge under specified conditions if the person charged was under the age of 18 years at the time of the offence. Such conditions may imply, for instance, that special measures are undertaken under the Social Assistance Act.
322. The assistance measures, which are to be determined in cooperation with the parents of the young person, could be counselling and guidance for the parents, for example. The measures may also be in the form of recommendations or orders being given to the parents concerning the care, school attendance or education of the young person. A personal adviser may be assigned to a young person who wants counselling and guidance beyond the fundamental support that parents are to children. The conditions for such measures must be approved by the court.
323. As an experiment, a youth contract scheme has been initiated under which offenders aged between 15 and 17 years commit themselves, with the consent of the parents, to participate in certain specified and listed activities, etc. in exchange for the prosecution refraining from further proceedings and so that the offence will not be registered in the young person's criminal record. These activities may be, for example, the commencement of an educational course or participation in various kinds of youth centres, clubs or associations.
2. Children deprived of their liberty, including any form of detention, imprisonment or placement in custodial settings (art. 37 (b), (c) and (d)
324. Under section 71 of the Constitution, personal liberty shall be inviolable. Any person who is taken into custody shall be brought before a judge within 24 hours, who shall decide, as soon as possible and within three days at the latest, whether the person taken into custody shall be remanded in custody or released. The Constitution provides, however, that no person shall be remanded in custody for an offence which may involve only punishment by a fine or mitigated imprisonment.
325. As mentioned above, children under the age of 15 years may not be deprived of their liberty under criminal procedure. Recourse to remanding in custody is otherwise regulated by Part 70 of the Administration of Justice Act. A person may be remanded in custody where there are reasonable grounds for suspecting that he has committed an offence subject to public prosecution, in case such offence is punishable under the law by imprisonment for a term of one year and six months. In addition to this, there must be specific grounds for presuming that he will evade prosecution or, if at liberty, he will commit another offence or, if at liberty, he will obstruct prosecution in the matter, especially by the removal of evidence or by influencing other persons. A person may likewise be remanded in custody where there is a strong suspicion that the person has committed a serious crime or a crime of violence of a certain gross nature.
326. As regards juvenile offenders where the conditions of remanding in custody are satisfied, the court may, with the consent of the person charged, decide that measures less radical than remanding in custody are to be applied to the person charged. It may be decided, inter alia, that the person charged (the juvenile) is to stay in an institution for children and young persons.
327. The Social Assistance Act lays down detailed rules for juveniles placed in closed wards instead of remand prisons. A closed ward is a ward whose outer doors and windows are permanently locked. In addition, rules have been laid down by Order on the access for juveniles to visits, correspondence, telephone conversations and other kinds of communication. Young persons who have attained the age of 15 years may be placed in a closed ward when such placement takes the place of remand custody.
328. Deprivation of liberty other than under the criminal procedure rules is also protected under the Constitution. Under section 71 (6) of the Constitution, the legality of deprivation of liberty not executed by order of a judicial authority shall, at the request of the person so deprived of his liberty, be brought before the ordinary courts of justice for decision. Rules governing this procedure have been generally provided by Part 43 a of the Administration of Justice Act and, in addition, by the other acts providing for deprivation of liberty, such as the Act governing the deprivation of liberty and other coercive measures within psychiatric treatment.
329. In connection with a sentence of imprisonment the starting point is that young persons under the age of 18 years shall not serve a term of imprisonment in prison. The crime committed would have to be very gross or recurring before young persons under the age of 18 years are sentenced to unconditional imprisonment. Most juvenile offenders are either sentenced to other sanctions than imprisonment or they serve a term of imprisonment in an appropriate home or an appropriate institution other than a prison. This means that, on an average, four or five juveniles under the age of 18 years have been imprisoned in Denmark during the last two years (1991 and 1992). If the county jails are included, the average number of young persons staying in the institutions under the Department of Prisons and Probation, taken as a whole, have been 14 to 18 juveniles.
330. If, by way of exception, juveniles are committed to prison, efforts are made to keep them isolated from older inmates. If the juvenile is to be placed in an open prison, Søbysøgaard State Prison is used, where an entirely new ward with accommodation for five juveniles has been established. The juveniles can thus stay in their own ward without any communication with older inmates.
331. The juveniles are not prevented from associating with older inmates, e.g. in the schools of the institution or in connection with various leisure-time activities, but the staff must, to the widest extent possible, protect the juveniles against any negative influence from older inmates. Juveniles under the age of 18 years who, on account of their danger, risk of escape or similar risks have to serve their sentence in a closed prison, are transferred to Ringe State Prison which receives juveniles up to the age of 23 years and women prisoners.
332. Juveniles under the age of 18 years who are kept in county jails either under arrest, as remand prisoners or in order to serve quite short sentences share cells exclusively with other juveniles under the age of 18 years and are otherwise only permitted to associate with old inmates if it is found to be in the best interests of the young person concerned and, upon concrete assessment, this is not deemed to expose the young person concerned to any bad influence. The isolation of the young inmates from the older inmates has, however, caused certain problems for the young persons. As mentioned above, a comparatively small number of young persons are deprived of their liberty by being placed in the institutions of the Department of Prisons and Probation and this has resulted in decreasing possibilities for the young persons to associate with other inmates. Furthermore, it seems to be a disadvantage for young inmates that they are often placed far away from their homes; it partly affects their possibilities of having visits, and partly makes the release process difficult.
333. It has turned out that, so far, the ward at Søbysøgaard State Prison has had a clear predominance of juveniles convicted of violence and crime involving personal danger. The maximum penalty has been six years. It is inadvisable that quite young persons sentenced to rather a short term of imprisonment for less serious crimes are placed in surroundings where the majority of the inmates are under considerably heavier charges and convicted of far more serious crimes. In the light of this, it has been decided that, in future, juveniles serving short sentences are to be placed in county jails as this type of imprisonment must be deemed to be less harmful to the young person than imprisonment together with juveniles who are under heavier charges. This will make it possible to place juveniles in a county jail close to their homes, thus offering better possibilities of having visits from their families and friends.
3. The sentencing of juveniles, in particular the prohibition of capital punishment and life imprisonment (art. 37 (a))
334. As regards the prohibition against capital punishment and life imprisonment, reference is made to the reply above under chapter V H. Reference is otherwise made to what has been stated above in respect of deprivation of the liberty of juveniles.
[Further information in State party report relating to the administration of juvenile justice]
II. GENERAL MEASURES OF IMPLEMENTATION
A. Measures taken to harmonize national law and policy with the provisions of the Convention
11. In a few areas it was necessary to adapt the existing practice to the provisions of the Convention. A change was implemented in the procedure for the serving of sentences by young offenders, so that young persons under 18 may never be placed in a cell with persons over 18 years of age and so that, with respect to social intercourse with other inmates, it is the task of the staff to carefully assess with whom a young person may associate, and to see to it, in this connection, that the social intercourse is in accordance with the best interests of the young person.
Source: Initial reports of States parties due in 1993: Denmark, UN Doc. CRC/C/8/Add.8, paras. 11, 30, 37-40, 106-107, 305-334 (12 October 1993)