Denmark, a peninsular shaped country holding a southern land border with Germany, protrudes into the North Sea, with Sweden and the Baltic to its East, along with several islands under its remit. An EU member state, Denmark combines parliament representative democracy, constitutional monarchy, and decentralised unitary state models in governing its people. It currently stands at a population of 5.6 million; the majority of this figure speaks Danish, with the major religion being Christianity (WHO 2019). Denmark’s life expectancy of women stands at 81 and 77 for men, and boasts a highly-competitive service-based economy, high employment levels, coupled with a secure social security system (BBC 2018). The following are several events in Denmark’s 20th and 21th century history that are worth mentioning:
- 1918 – Universal suffrage.
- 1930s – Welfare state established.
- 1949 – Denmark joins NATO.
- 1953 – Denmark introduces proportional representation in its parliamentary elections.
- 1973 – Denmark joins the European Economic Community.
- 1992 – Denmark rejects the Maastricht Treaty.
- 2000 – Via referendum, the Danish people choose to reject the introduction of the Euro.
- 2012 – Same-sex marriage legalised.
- 2017 – New plans to deter asylum seekers and seize their possessions voted in by the Danish parliament.
- 2018 – Denmark bans face veils in public.
In terms of the political and legal systems and structuring of Denmark, the highest bodies of the state are as follows: the cabinet and Prime Minister, the national parliament, independent courts, and the monarch. The division of power in Denmark consists of the monarch as the head of state (currently Queen Margrethe II) in a largely ceremonial role. The cabinet and Prime Minister in combination fill the role of the executive, in addition to sharing legislative power with the national parliament. The judiciary, where the executive nominates judges before being formerly appointed by the monarch, stands independently from other branches. The constitution does not grant the judiciary with the power of judicial review of legislation, but they perform this task by custom. There are no constitutional or administrative courts, with the Supreme Court (Højesteref) dealing with constitutional matters. The parliament (Folketing), contains 179 elected seats working under a framework that encourages cross party collaboration and consensus building.
According to Danmarks Domstole (The Danish Courts) (2018) the courts of Denmark are composed of the following:
- The Supreme Court(Højesteref)
- The three high courts:The Western High Court(VestreLandsref);The Eastern High Court (Østre Landsret); and The High Court of Greenland (Grønlands Landsret).
- The Maritime and Commercial Court (Sø-og Handelsretten)
- The Court of Judicial Registration (Tinglysniysretten)
- The Special Court of Indictment and Revision (Den Særlige Klageret)
- 24 District Courts
- Court of the Faroe Islands
- The Court in Greenland and the 4 Greenlandic Circuit Courts
According to further information provided by the Domstole (2018), provision of legal aid in Denmark makes available a broad spectrum of offers, ranging from non-binding guidance provided anonymously to actual representation in court. In larger cities and towns there is the existence of private legal aid offering free legal assistance. Most legal aid institutions will require that applicants meet a certain level of financial eligibility (more on this below). However, as a starting point, individuals are eligible for free legal aid in all matters concerning their private life. Further restrictions to legal aid exist, such as the fact it is not usually granted to business owners or in matters pertaining to the sale or purchase of real property. Law centres also exist, which provide services through lawyers. In this setting, free advice is given to anyone, regardless of income, but individuals must physically attend the centre. The majority of Danish lawyers will provide free legal aid directly, with currently close to 5,800 registered lawyers in the country (European Law Institute 2018)
- Level 1 assistance: verbal provision of advice.
- Level 2 assistance: includes advice in addition to ordinary basic legal advice.
- Level 3 assistance: assistance that is in connection with settlement negotiations.
NB: Level 2 & Level 3 require payments to be made by an individual seeking assistance, with governmental subsidies available toward these.
Full legal representation: If eligible, an individual is assigned a lawyer whose fee is paid by the Danish state. Before being granted full representation, a reasonable expectation of the defendant winning the case must be present. In cases dealing with termination of joint custody or other child custody cases, divorce cases, separation cases or other marital cases, the court may grant full representation. If full representation is refused by the Civil Affairs Agency this decision can be appealed to the Appeals Permission Board (Procesbevillingsnævnet).
Income criteria/eligibility for legal aid: Maximum annual income for a single person to receive full representation may not exceed DKK 248,000. Regarding cohabitation/married couples, the household income may not exceed DKK 315,000 for legal representation to be provided. Both amounts can have DKK 43,000 added for each child living at home under the age of 18. For comparison, the average household net- adjusted disposable income per capita stands at DKK 24,315 (OECD 2018). Danish citizens derive their rights from the following sources of law: the Constitutional Act, statutory legislation, regulatory statutes, precedent, and customary law (NYU Law 2017). Danish citizens can also derive rights from EU law and the European Convention of Human Rights.
Complaints Against Police: In making complaints against police officers, all mattes relating to these are dealt with by The Danish Independent Police Complaints Authority (Den Uafhængige Politiklagemyndighed). The goals of this body are the following:
- Help ensure legal security for all those involved in the complaints process.
- Maintain confidence of the public and the police in investigating matters dealing with the police.
- Objectivity in ensuring proper implementation and rapid procedures.
- Provision of high quality service and efficiency.
- Ensuring accessibility to citizens.
- Establishing and building strong international cooperation with similar bodies in other European nations.
A complaint can only be made to the Police Complaints Authority if the police have acted in a ‘criticisable’ manner. Criticisable manner:
- Suspicion that police have spoken rudely or acted inappropriately.
- Suspicion that police overstepped acceptable levels of force when arresting a suspect.
- Suspicion that police have abuse their powers.
The procedures of lodging a complaint and subsequent investigation depend on whether the complaint concerns a criminal offence or police misconduct.
- Complaints of Misconduct – Part 93b of the Administration of Justice Act:
‘Pursuant to section 1019n of the Danish Administration of Justice Act, the Police Complaints Authority must decide a complaint within a reasonable time of receipt. If the Police Complaints Authority does not manage to decide the complaint within six months of receipt, the complainant and the police officer complained of will be notified of the reason for the delay and the expected date of the decision’.
- Complaints of a Criminal Offence – Part 93c of the Administration of Justice Act:
If the Police Complaints Authority has received a complaint of an offence committed by a police officer and has not, within one year of receipt, made any decision to dismiss the complaint, discontinue the investigation, withdraw charges, dismiss charges or institute criminal proceedings, or requested a court hearing for the purpose of summary proceedings pursuant to section 831 of the Administration of Justice Act, the complainant and any other parties involved must be notified of it in writing’.
Search Laws: According to the Police Act of 2004, the police have powers to enforce ‘Stop and search-zones. In such zones: ‘the police may search any person even if he/she is not suspected of a criminal offence. The objective is to control whether passers by carry illegal knives or other weapon. The size and reason for establishing the search zones is not defined by law, but is set administratively by the chief of police.’
Investigation/ Arrest/ Charging Procedure/ Pre-trial Proceedings: At the point of preliminary charge, the police will first seek to establish if a criminal offence has taken place. If this is deemed to be the situation, then the police will move on to apprehending the suspect(s) for questioning. Police then have the right to detain suspects in relation to on going investigations. If the police wish to detain a suspect so to not jeopardise active police investigations, the suspect must be brought before a court within 24 hours of their arrest. Pre- trial detention can be extended by a judge to up 3 days. There are also several intrusive investigative measures at the disposal of the police, such as the ability to obtain information during an investigation via searches, surveillance of telecommunications, telephone tapping, etc. However, the majority of intrusive measures must gain court approval before being used. When it comes to making a decision with regards to filing charges against a suspect, this function is passed onto the prosecutor with evidence attained from the pre-trial investigation. If the evidence against the suspect is deemed insufficient, the prosecutor will drop the case. As the police and prosecution service operate in close coordination at the local level, the latter will usually be involved with the case at an early stage, sometimes including the planning of the investigation.
If an individual has been arrested they have the right to contact a lawyer of their own choice before agreeing to a police interview. Additionally, suspects have the right to contact their family or employer to inform them of the arrest. Sometimes the police can request that suspects be kept in solitary confinement, in these scenarios outside contact may only be made by correspondence or phone call under police supervision – decision for solitary confinement must be approved by a judge. Judges ultimately decide if suspects can be remanded in custody. The following conditions are applicable:
- ‘The police must be able to explain why they suspect that you have committed an offence for which you may be sentenced to imprisonment for 18 months or more’.
- ‘The potential sentence must be more than 30 days of imprisonment’.
- ‘The police must be able to satisfy the judge that it is important that you are not released
as long as the police investigation is ongoing, for one of the following reasons’: ‘The police believe you will evade punishment’. ‘There is reason to believe that you will continue to commit the same type of crime’. ‘There is reason to believe that you will impede the investigation if released’. ‘The crime is so serious that it would be offensive to others if you were allowed to go free while awaiting trial’.
Rights After Being Formerly Charged: If, on the basis of the police investigation, the prosecutor decides to bring charges against an individual, the engaged legal representative will receive copies of all investigation reports prepared by the police. The police have some power over what evidence can be disclosed to defendants, such decisions can be appealed in court. As a general rule, defendants have the right to attend all court hearings concerning the case at hand. In some ‘extreme’ cases this right can be revoked, however, defendant’s still maintain the right to know what took place in their absence. Defendant’s lawyers may attend all hearings too. Lawyers are able to participate in further investigation, such as identification parades (line-ups) and reconstructions, etc. Legal defence teams are also entitled to summon witnesses to testify in court, although the prosecution maintains the right to object to witnesses being heard. In the case of the latter, the court will decide whether the proposed witness is relevant to proceedings.
Rights of the Accused at All Times
Double Jeopardy: As a signatory of the European Convention of Human Rights (ECHR), the following applies to Denmark under Article 4 of Protocol No. 7: 1. ‘No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State’. 2. ‘The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case’. 3. ‘No derogation from this Article shall be made under Article 15 of the Convention.’ • ‘after acquittal or conviction for a lesser crime than charged • when the accused later confesses • when very strong new evidence emerges ("new" meaning that the prosecution could not possibly have known about it before), • or when the decision was caused by perjury, false documents etc., including offences committed by participants of the trial such as defence counsel.’ (The Danish Courts & Judge Peter Garde 2011)
Presumption of Innocence: Equally, due to Denmark’s ECHR signatory status, Article 6, paragraph 2 promulgates that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law’. Review by The Special Court of Indictment and Revision, a body that processes ‘complaints against judges and deputy judges, applications for resumption of criminal cases, appeals regarding refusal of resumption of a judgement given in default and complaints about the courts exclusion of an appointed defense lawyer in criminal cases’, may grant review (at the request of the Attorney General) in the following scenarios:
Capital Punishment: State execution was abolished in 1930.
Ex Post Facto Punishment: Denmark, as a signatory of the Universal Declaration of Human Rights, must follow Article 11, paragraph 2 : no person can be held guilty of any criminal law that did not exist at the time of offence nor suffer any penalty heavier than what existed at the time of offence.
Fair Trial Rights: Under Article 6, paragraph 1 of the European Convention on Human Rights, ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. Danish 1.) ‘Personal liberty shall be inviolable. No Danish subject shall, in any manner constitution: Part VIII: Right of Personal Liberty, section 71: whatsoever, be deprived of his liberty because of his political or religious convictions or because of his descent’. 2.) ‘A person shall be deprived of his liberty only where this is warranted by law’. 3.) ‘Any person who is taken into custody shall be brought before a judge within twenty-four hours. Where the person taken into custody cannot be immediately released, the judge shall decide, in an order to be given as soon as possible and at the latest within three days, stating the grounds, whether the person taken into custody shall be committed to prison; and in cases where he can be released on bail, shall also determine the nature and amount of such bail. This provision may be departed from by statute as far as Greenland is concerned, if for local considerations such departure may be deemed necessary’. 4.) ‘The pronouncement of the judge may be separately appealed against at once to a higher court of justice by the person concerned’. 5.) ‘No person shall be remanded in custody for an offence which can involveonly punishment by fine or mitigated imprisonment (hæfte)’. 6.) ‘Outside criminal procedure, the legality of deprivation of liberty not executed by order of a judicial authority, and not warranted by legislation relating to aliens, shall at the request of the person so deprived of his liberty, or the request of any person acting on his behalf, be brought before the ordinary courts of justice or other judicial authority for decision. Rules governing this procedure shall be provided by statute’. 7.) ‘The persons referred to in sub-section (6) shall be under supervision by a board set up by the Folketing, to which board the persons concerned shall be permitted to apply’. Habeas Corpus: All defendants retain the right to habeas corpus. Medical Care: All defendants retain the right to medical care.
Right to Notice of Charges: As established above, defendants must be informed of the charges made against them.
Right to Non Self-Incrimination: Pursuant to Article 6(1) of the European Convention of Human Rights, and Article 14(3)g of the United Nations Convention on Civil and Political Rights, defendants have the right not to self- incriminate themselves.
Right to Trial with Jury: In most cases, a panel of one professional judge or 2 ‘lay’ judges will try defendants. However, for serious cases carrying a prison sentence of 4 years or more, defendants can be tried by a panel of 3 professional judges and a jury. If defendant has pled guilty, they will face one single judge (Fair Trials 2015)
Rights in Prison
Conditions of Confinement: Prison sentences are usually served in state prisons, which are either open or closed. More often than not, sentences are served in the former, with this decision lying with the Department of Prisons and Probation. Closed prisoners are reserved for longer sentences for severe crimes
Immigrant detention: • Rules Most important rules for detainment are available in English. Inmates can ask for this from prison staff. • Language problems - Usually it is possible to communicate in English or German to prison staff. If an inmate speaks neither of these two languages, staff can call upon an external interpreter. • Spokesman Some prisons have a special spokesman for foreign inmates. • Embassy support - Inmates are able to contact their respective embassy or consulate. • Election/political participation - In some circumstances inmates are entitled to vote in local and general elections. • Transfer to country of origin - In certain cases inmates may be able to serve their sentence in their own country. • Expulsion - If the court has decided that an inmate is to be expelled when released, this sentence normally will be served in a closed prison - Parole may be granted earlier than usual. - Inmates can be released after having served half of their sentence. - Police will arrange how and when persons are to be expelled following release. (Kriminal Forsorgen 2009)
Activities: ‘Sentenced inmates of institutions under the Prison and Probation Service have a duty of occupation; remand prisoners have a right, but no duty, to work. Inmates must be occupied for 37 hours a week and receive wages. If they are ill, they receive sick pay. Inmates may be occupied under treatment programmes or with production activities (workshops, agriculture, production schools, etc.) or education’. • Leisure time - ‘Inmates may pursue sports activities, watch television, play games, read, etc., in their leisure time’. • Self-catering - ‘Inmates of state prisons have to do their own shopping at the prison grocery store, cook food, and do their own dishes, cleaning, and laundry. Inmates of local prisons receive deep-frozen meals for self-heating’. • Leave - ‘Inmates may be granted leave from the prison for various purposes’. - ‘Every third weekend for visits to family or friends, provided that certain time conditions have been met’. - For special purposes (seriously ill close relatives, funerals, court hearings, medical examinations, etc.) - Day release (leave every day) for education or employment purposes. It is a condition for leave that the risk of abuse of the leave is deemed non-existent. Moreover, leave may be subject to various additional conditions’. Ø ‘About 56,000 leaves are granted every year. Abuse in the form of re- offending occurs in 0.1 per cent of the cases. Altogether, abuse in the form of failure to return, late return or return while under the influence of alcohol or drugs occurs in about 2.8 per cent of the cases’. (Prison Studies 2012)
Right to Medical Care: The Danish state in general is responsible for providing health care to its citizens. But this provision does not extend to the prison service; as a result, the prison service is responsible for providing such care to individuals in its custody (Jespersen & Shwalm 2016). For the duration of their sentences, inmates must have access to medical treatment at the same quality as provided to the general Danish population. Mental Health Care: Mental health care, including the provision of professional psychiatric services, falls under the umbrella of health care provision (ibid).
External Contact: Inmates are entitled to supervised visits from those outside of the prison for at least one, possibly two hours per week – visitors must be approved in advance. Open state prisons have coin or card payphones, whereas in closed state prisons and local prisons inmates may only make monitored calls with special permission (ibid). Mobile phones are forbidden in all prisons. Letters sent from prison will not be read unless necessary for security purposes or in protection of victims (ibid). Letters sent to prison will be opened and their contents checked in the presence of the inmate (ibid). Danish inmates are entitled to vote in elections via post, in addition to being able to participate in other forms of legal activities, e.g. referenda (ibid). (Kriminal Forsorgen 2009)
WHO (2019): https://www.who.int/countries/dnk/en/ BBC (2018): https://www.bbc.com/news/world-europe-17929661 The Danish Courts (2018): www .domstol.dk/om/publikationer/HtmlPublikationer/Profil/Profilbrochure%20- %20UK/kap03.html European Law Institute (2018): https://www.europeanlawinstitute.eu/membership/institutional-observers/danish-bar-and-law- society/ NYU Law Department: http://www.nyulawglobal.org/globalex/Denmark.html. Independent Police Complaints Authorities’ Network (2012) : https://ipcan.org/members/the-danish-independent-police-complaints-authority Judge Peter Garde: http://hrlibrary.umn.edu/fairtrial/wrft-pg.htm The Danish Courts (2011) : http://www .domstol.dk/om/otherlanguages/english/thedanishjudicialsystem/SpecialCourtofIn dictmentandRevision/Pages/default.aspx Fair Trials (2015) : https://www.fairtrials.org/wp-content/uploads/DENMARK.pdf Kriminal Forsorgen (2009) : https://www.europris.org/wp-content/uploads/Denmark-EN- prisoner-information-sheet.pdf European e-Justice Portal (2012) : https://e-justice.europa.eu/content_rights_of_defendants_in_criminal_proceedings_-169-DK- maximize-en.do?clang=en&idSubpage=2 Prison Studies (2012): http://www .prisonstudies.org/sites/default/files/resources/downloads/inbrief_updateddec.201 2.pdf Jespersen & Shwalm (2016) : (https://implementconsultinggroup.com/the-danish-prison- service/ World Prison Brief (2018): http://www.prisonstudies.org/country/denmark
- Ministry responsible for prisons: Ministry of Justice (Justitsministeriet)
- Body responsible for prison administration: Department of Prisons and Probation (Kriminalforsorgen)
- Head of prison administration: Director General Thorkild Fogde
- Total prison population (including pre-trial detainees/remand inmates) (2018): 3,635 Occupancy level of prisons based on capacity (2018): 95.8%
- Prison population rate (per 100,000 of national population (2018): 63
- Percentage of prison population as pre-trial detainee and remand inmates (2018): 35.5% Female percentage of prison population (2018): 3.6%
- Juvenile percentage of prison population: 0.3%
- Foreign national percentage of prison population: 28.6%
- Number of prison facilities: 47
- Official nationwide prison capacity: 3,795