Status 2003 - Danish Institute for Human Rights

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Status 2003 - Danish Institute for Human Rights

H UMAN RIGHTS IN DENMARK

The Status Report reviews bills, decisions, opinions

and government initiatives made within the field

of human rights in Denmark in 2002. The Status

Report is divided according to the general rights

safeguarded in the European Convention for the

Protection of Human Rights and Fundamental

Freedoms. In addition to these rights, the Status

Report also includes general social, economic and

cultural rights as well as the special rights

applicable to women, children and refugees.

Status 2002 has been prepared by the Danish

Centre for Human Rights. The Danish Centre for

Human Rights was established by a parliamentary

decision in 1987. The Centre is a Danish entry point

for the gathering and dissemination of knowledge

about human rights in Denmark, in Europe and

internationally. Its mandate includes research,

information, education and documentation on to

Danish, European and international conditions.

ISBN 87-90744-75-6

9 788790 744755

HUMAN RIGHTS IN DENMARK · STATUS 2003

HUMAN RIGHTS

IN DENMARK

STATUS

2003

THE DANISH CENTRE FOR HUMAN RIGHTS


Danish Institute for Human Rights

Human Rights in Denmark

Status 2003


Nationale kontrolorganer

2


Danish Institute for Human Rights

Human Rights in Denmark

Status 2003

Nationale kontrolorganer

3


PREFACE ................................................................................................... 7

READER GUIDELINES........................................................................... 13

IMPLEMENTATION OF HUMAN RIGHTS CONVENTIONS

INTO DANISH LAW ............................................................................... 17

INTERNATIONAL CONTROL MECHANISMS ................................. 21

GENERAL RIGHTS.................................................................................. 27

- Right to Life............................................................................................ 27

- Prohibition of Torture and Inhuman or Degrading Treatment

or Punishment ....................................................................................... 29

- Prohibition of Slavery and Forced Labour ........................................ 33

- Right to Liberty and Security .............................................................. 35

- Right to a Fair Trial ............................................................................... 44

- No Punishment without Law.............................................................. 57

- Right to Respect for Family and Private Life, Home and

Correspondence..................................................................................... 59

- Freedom of Religion.............................................................................. 70

- Freedom of Expression and Information ........................................... 71

- Freedom of Assembly and Association.............................................. 80

- Right to an Effective Remedy .............................................................. 83

- Prohibition of Discrimination.............................................................. 85

- Protection of Property........................................................................... 100

- Economic, Social and Cultural Rights................................................ 102

SPECIAL RIGHTS..................................................................................... 105

- Rights of Women ................................................................................... 105

- Rights of the Child ................................................................................ 107

- Rights of the Disabled........................................................................... 116

- Rights of Ethnic Minorities .................................................................. 123

- Rights of Refugees................................................................................. 125

SELECTED LITERATURE FROM 2003 ON HUMAN RIGHTS ........ 134

HUMAN RIGHTS ON THE INTERNET .............................................. 138

LIST OF JUDGMENTS AND DECISIONS............................................ 141

LIST OF BILLS........................................................................................... 144

LIST OF OTHER DRAFTS AND DOCUMENTS ................................. 146

ABBREVIATIONS..................................................................................... 147

INDEX ........................................................................................................ 148

Contents

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PREFACE

Human rights protection in Denmark has developed in different directions

during the past year. Various initiatives have been taken, some giving the

individual citizen less human rights protection, others strengthening the

individual’s possibilities of enjoying his or her human rights.

Some of the initiatives and activities with a negative human rights impact

are those that lead to more state intervention in the individual citizen’s and

family’s right to self-determination and result in incidents violating

individuals’ integrity or dignity.

Some of the positive actions of 2003 are initiatives taken to protect

particularly vulnerable persons and to counter discrimination. One

improvement is an extended right to examination of complaints of

discrimination based on ethnic origin or sex.

Various initiatives illustrating these trends are described below.

A characteristic of the legislative initiatives affecting the administration of

justice is that, in a few fields, Denmark sets aside the high level of protection

obtained and expanded over decades and instead approaches the

minimum protection laid down in the human rights conventions.

Within the administration of justice field, the Danish Administration of Justice Act

has been amended to combat biker crime and other organised crime. Some of the

consequences of this statutory amendment are that the right of the police to ask civil

persons for assistance has been improved, the conditions of using agents have been

eased, the possibility to conceal the identity of informers has been introduced, and

counsel’s right to inspect documents that constitute background material on biker

gangs has been restricted.

The Danish Association of Judges (Dommerforeningen), the Council of the

Danish Bar and Law Society (Advokatrådet) and others expressed concern,

when consulted about the Bill, that it does not observe the procedural

guarantees traditionally offered in Denmark at interference with the rights

of suspects and accused and when using special investigative procedures.

The Institute’s assessment of the Bill was based on fundamental human

rights requirements and requirements developed by the case-law of the

European Court of Human Rights. The Institute’s concern is aimed at the

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risk of infringement of the right to a fair trial and the right to respect for

family and private life at a future application of proposed provisions in

concrete cases.

In 2003 the European Court of Human Rights found against Denmark in a

case concerning the rules on detention stipulated by the Administration of

Justice Act. The case concerned a bus passenger who refused to disclose her

identity to a ticket inspector with whom she had had a dispute as to

whether or not she had travelled without a valid ticket. The passenger was

then detained for 13? hours and was only released when she disclosed her

identity. The Court found that the length of the detention was not

proportionate to the cause of the detention and accordingly there had been

a violation of Article 5 of the European Convention on Human Rights.

In relation to the protection of human rights adopted to award individuals

with special needs a possibility to enjoy their human rights, the period has

been characterised by some positive initiatives, but also an ill-advised

inadequacy of initiatives.

Such inadequacy of initiatives was seen particularly in relation to the

safeguarding of the rights of the disabled. The year 2003 had been

recognised by the European Union as the European Year of People with

Disabilities. Also this year, the United Nations increased its focus on the

rights of the disabled by starting work on an international convention.

Unfortunately, an improvement of the rights of the disabled was not

reflected in many Danish initiatives in 2003.

On the contrary, in the period under review, the European Committee of

Social Rights criticised the conditions of employees with disabilities; and

concrete Danish cases point towards a lack of consciousness in treating

persons with disabilities with respect for their dignity, and without

disregarding their rights in their everyday lives, e.g. through the use of force.

In its most recent examination of Denmark, the European Committee for the

Prevention of Torture and Inhuman or Degrading Treatment or Punishment

(CPT) questioned the use of immobilisation and emphasised that long

periods of restraint cannot have any medical justification, and therefore it

amounts to ill-treatment of such patients in the Committee’s view.

During the summer of 2003, new statistical material on the use of restraint

in psychiatric establishments was published. This material shows great


egional differences in the use of restraint at psychiatric units and in the rate

of successful complaints to the 15 local patients’ boards of complaints. The

figures are a reminder of the fallibility of the health system and can be taken

to favour a prohibition against measures of restraint which may amount to

ill-treatment and lead to permanent harm, such as long periods of

immobilisation, compulsory medication and electric convulsive treatment.

In Danish Government’s response to the Council of Europe’s Committee for

the Prevention of Torture (CPT), submitted in June 2003, the Ministry of the

Interior and Health stated that the issue of the use of restraint in psychiatric

establishments, including the use of immobilisation, will be taken into

consideration at the revision of the Danish Psychiatry Act in 2005-06.

The Danish Institute for Human Rights has urged the Ministry to launch

temporary measures to discontinue the use of long periods of

immobilisation.

Some of the positive initiatives taken to promote human rights for groups

in need of special protection are plans of action and bills affecting

vulnerable women and children.

During the period under review the Government has submitted an action

plan intended to combat and prevent trafficking in women. The Action Plan

to Combat Trafficking in Women has been followed up by the opening of a

hotline offering counselling to female victims of trafficking in 11 languages.

2003 also saw improved efforts to combat sexual abuse of children by

means of a new action plan. Some focus areas of this action plan are the

authorities’ handling of suspicions, preventive efforts, prosecution,

support to children and their families, efforts to help offenders, and

international initiatives against sexual abuse of children.

Also the fight against child pornography, sexual exploitation of children

and the sale of children has increased through a new Bill. Due to the

amendment of the Danish legislation, Denmark has now ratified the

Optional Protocol to the Convention on the Rights of the Child on the sale of

children, child prostitution and child pornography, and Denmark has also been

enabled to adopt the European Framework Decision on combating the sexual

exploitation of children and child pornography. New rules on the

examination of children who have been sexually assaulted have also been

introduced in connection with the statutory amendment.

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The past year also saw various initiatives intended to further integrate

persons of an ethnic origin other than Danish.

Through bills and plans of action, the Government has sought to motivate new

Danes by financial incentives to actively integrate themselves into the Danish

society, and the labour market in particular. One example is 114 specific

initiatives in the immigration field (the Government’s Vision and Strategies for

Improved Integration) presented by the Government in June 2003 as follow-up

on the initial Government policy. According to the new rules, asylum-seekers

must conclude a mandatory contract on compulsory activation and

education, and educational requirements have been tightened.

In relation to integration on the labour market, several bills have been

introduced to increase the employment rate of immigrants. Immigrants

who have no job can gradually be given improved qualifications for the

labour market through a combination of Danish classes, other education

and traineeship.

Another initiative to this end is the amendment of the Act of an Active

Social Policy, which extends the so-called ‘apron rule’ thereby making it

possible to use the scheme even if the person in question has only loose ties

with the labour market. The voluntary scheme has been extended to make

local authorities competent to assess whether the relevant person is

sufficiently available for the labour market and consequently eligible for

cash benefit, or whether the financial assistance should instead be granted

as an allowance to the spouse. This initiative cannot be assumed to have

any integrating effect; on the contrary, there is a risk of discrimination

because it affects in particular population groups with traditional family

patterns, and it is also problematic from a gender perspective.

Some of the other initiatives taken in 2003 to improve integration are special

efforts intended to change the cultural practices of fellow citizens of an

ethnic origin and culture other than Danish.

A new Bill criminalising female circumcision (or female genital mutilation)

was adopted in 2003. The statutory amendment makes it possible to punish

Danish nationals and other persons residing in Denmark who carry out or

contribute to the circumcision of girls, even if such an act is not illegal under

the law of the country in which the act was done. This initiative is in line

with the United Nations recommendations to enforce laws that prohibit

female genital mutilation.


There has also been a focus on forced and arranged marriages, e.g. through

the publication of the Action Plan against Forced Marriages, Semi-forced

Marriages and Arranged Marriages.

Initiatives intended to alter cultural practices must be carefully balanced.

The core of the problem is often the individual’s right to self-determination.

The right to self-determination comprises the right to opt for or against a

culture. It applies both to the state, which must allow the young persons to

develop, and to parents, who must make room for the youngsters to

develop freely. Human rights can contribute to this balancing to quite an

extent: female genital mutilation is a clear violation of the affected person’s

integrity and should therefore be punishable; forcing a person to marry is

contrary to the European Convention on Human Rights. When the

authorities prevent a Danish citizen to freely choose to marry or live with

a person from another country, this also amounts more or less to violation

of such person’s right to self-determination. However, emancipation from

the parents’ unreasonable coercion may not be replaced by unreasonable

public coercion.

The Aliens Act was amended several times during the year. One of the

amendments introduced a new stricter return procedure under which the

police has been given new measures to motivate refused asylum-seekers to

cooperate in leaving Denmark. The stricter return procedure comprises

measures such as better counselling and information about refused

asylum-seekers’ duty to leave the country. Refused asylum-seekers who do

not actively and unconditionally cooperate in their return will have their

board allowance withdrawn (the so-called ‘lunch box scheme’).

Within the field of discrimination, 2003 was also the year when Denmark

got an Act on Equal Treatment irrespective of Ethnic Origin, which is

intended to enhance the protection against differential treatment and

further equal treatment of everyone irrespective of racial or ethnic origin.

A side effect of the Act is that in the autumn of 2003 Denmark got its first

Complaints Committee for Ethnic Equal Treatment (Klagekomité for Etnisk

Ligebehandling), which shall consider actual complaints of differential

treatment based on racial or ethnic origin. The Complaints Committee has

been set up by the Danish Institute for Human Rights and is to consider

complaints of any kind of public and private activities, such as social

protection, social security and health work, social goods, education and

training, and access to a dwelling. When such complaints are lodged, the

Complaints Committee will assess whether the prohibition of differential

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treatment has been violated, but it has no legal authority to impose any

sanctions or award financial compensation for nonobjective differential

treatment. By the establishment of the Complaints Committee, citizens’

rights to remedies have been strengthened in a positive way as seen in

relation to the implementation of both the Race Directive and the

International Convention on the Elimination of All Forms of Racial

Discrimination.

Gender equality has also been in focus in 2003, for one thing because it was

decided to make the Gender Equality Board (Ligestillingsnævnet)

permanent. The Board has been set up to examine, free of charge, citizens’

complaints of differential treatment based on sex. As regards employment

law, the Board is also a safety net for employees who are not members of a

trade union.

To improve gender equality a Long-term Plan of Action for Equal Treatment

has also been submitted. It describes initiatives concerning women in

management, politics and research, health for women and men, and

initiatives concerning youth culture, modern sex roles and integration.

Altogether, 2003 can be characterised by two different trends. One trend is

about increased protection of personal security and safeguarding of

vulnerable persons. This trend is expressed concretely by improved

possibilities to carry out investigation and combat sexual abuse of children

and trafficking in women, but it is also reflected in the improved right to

complain of differential treatment. The other trend is about the low

consciousness in Denmark of ways to safeguard respect for the right to selfdetermination,

human integrity and dignity and the prohibition of

discrimination by regulation and practice. This trend is reflected in the

consequences impressed upon the accused and suspects of the fight against

crime, and in the treatment of persons of an ethnic background other than

Danish, but also in matters concerning persons with disabilities and

psychiatric patients.

Professor Claus Haagen Jensen

Chairperson of the Board

Morten Kjærum

Executive Director


READER GUIDELINES

The Status Report is divided according to the fundamental rights protected

by the European Convention for the Protection of Human Rights and

Fundamental Freedoms (ECHR), the Danish Constitution and the Charter

of Fundamental Rights of the European Union. The subsections under each

individual human right mention and summarise the bills, decisions,

opinions and initiatives of the period which affect human rights.

The first part of this Report gives a status of the rights that we traditionally

characterise as freedoms. These rights are of relevance to all citizens and

can be relied on by everybody before authorities and courts of law. The

same applies to economic, social and cultural rights.

Other rights are only of relevance to persons belonging to a group of

citizens in need of special protection. Such special rights have been

accounted for in the second half of the Report. These rights are the rights

of the child, the rights of women, the rights of the disabled, the rights of

ethnic minorities and the rights of refugees. They are governed

individually by relevant legal instruments from the Council of Europe, the

European Union and the United Nations.

The background material of Status 2003 comprises bills, but not existing

statutes and subordinate legislation. Therefore the Report is not a complete

examination of all Danish legislation and its adaptation to and compliance

with the human rights conventions, but only a status of activities during

the period.

Status 2003 only mentions EU initiatives of relevance to human rights if

they have been mentioned in the consultation papers issued by Danish

authorities. For further details see the subsection on Bills right below.

Bills

The Danish ministries make increasing use of the option to involve expert

organisations in the preparatory work through consultations. Being one of

the organisations normally consulted, the Danish Institute for Human

Rights receives a large number of consultation papers from ministries each

year.

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Most consultation papers are related to a bill amending existing Danish

legislation or establishing new law, but some concern legislative acts from

the EU to be implemented into Danish law.

The Danish Institute for Human Rights replies to such consultation papers

relating to human rights concerns as are raised by a bill or a legislative act.

These replies are summarised briefly under the individual rights.

National control mechanisms

Denmark has no special institutions or agencies mandated to deal with

complaints about human rights violations. If a person believes that the State

has violated his or her rights, he or she must institute proceedings under

the general complaints system. First and foremost this means courts of

general jurisdiction. In addition, the Parliamentary Ombudsman considers

complaints about human rights violations. This may be in connection with

complaints about administrative decisions or in relation to how citizens are

treated by public authorities in general.

Apart from the human rights enshrined in the Danish Constitution, the

ECHR is the only human rights instrument which has so far been

incorporated into Danish law. The Incorporation Committee, set up by the

Ministry of Justice, recommended in October 2001 that three UN human

rights conventions signed by Denmark should be incorporated into Danish

law. The recommendations of the Committee are summarised in the section

on Implementation of Human Rights Conventions into Danish Law.

Danish court decisions

All Danish courts of law, that is, district courts, the Eastern and Western

High Courts and the Supreme Court, hear cases involving issues of

compatibility with or violation of the human rights conventions. The

convention invoked mostly before the courts is the ECHR, and only in rare

situations UN human rights conventions.

The following review of human rights only includes judgments published

in the Danish Weekly Law Reports (Ugeskrift for Retsvæsen) in which the

courts have applied the Constitution, the ECHR or a UN human rights

convention. The judgments – except for one district court judgment

concerning a disabled person and a Supreme Court judgment concerning

freedom of expression – have been selected on the basis of a review of the

Weekly Law Reports as from October 2002 (No. 41) until October 2003 (No.

41). The summary of the judgments is an exact reproduction of the Danish


summary printed in the Weekly Law Reports. The summaries of the

judgments have been reproduced with the permission of the publishing

house of Thomson.

Opinions of the Parliamentary Ombudsman

Not only Danish courts pay attention to potential human rights violations.

Also the Parliamentary Ombudsman takes human rights related questions

into consideration in his decisions from time to time. From October 2002 to

October 2003 the Ombudsman closed one case involving the consideration

of provisions of the ECHR.

It is expected that the case in question will be published in the 2003 Report

of the Parliamentary Ombudsman, but a brief summary is given in this

Status Report.

Judgments of the European Court of Human Rights

Complaints of human rights violations in Denmark can be submitted to the

European Court of Human Rights in Strasbourg. A condition precedent is,

however, that the violation complained of has been examined before a

Danish court of law or an administrative body which has made a final

decision in the matter. Few Danish applications are submitted to the Court

every year. Some of these are declared inadmissible or struck out of the list

following a friendly settlement, and only very few – in the period under

review two cases – are decided by judgment.

The sections on the individual human rights include a list of judgments

delivered by the Court during the period from October 2002 to October

2003. Denmark is the respondent in all cases mentioned.

Opinions of and concrete cases before the Committees

Committees have been set up under the UN human rights conventions to

monitor implementation of the human rights in the individual states and

to deal with complaints of individual violations. Further details on this

system of committees are given in the section on Implementation of Human

Rights Conventions into Danish Law.

No UN Committees have examined Denmark in the period under review.

To the extent that the Committees have considered specific complaints of

human rights violations in Denmark, summaries of such proceedings are

given under the individual human rights.

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In addition to the UN Committees, some committees have been set up

under the Council of Europe to monitor compliance with and

implementation of human rights in the member States of the Council of

Europe.

The European Committee of Social Rights has examined Denmark during

the period under review. The conclusions of the Committee are

summarised in this Status Report in the section on the Rights of the

Disabled and in the section on Economic, Social and Cultural Rights.

Government initiatives

Status 2003 mentions a number of Government initiatives of relevance in a

human rights context. Some of these initiatives are committee work and

action plans in fields where contemplated legislation or other regulation is

presumed to have human rights consequences.


IMPLEMENTATION OF HUMAN RIGHTS CONVENTIONS INTO

DANISH LAW

The European Convention on Human Rights

The European Convention on Human Rights was incorporated into Danish

law by Act No. 285 of 29 April 1992. Consequently the Convention is part

of Danish national law in force.

UN conventions

The Incorporation Committee (Inkorporeringsudvalget), set up by the

Ministry of Justice, completed its Report on Incorporation of Human Rights

Conventions into Danish Law in October 2001 (Report No. 1407).

The Report describes how international conventions are implemented into

Danish law and what status they have in Danish law. It is emphasised that

even conventions not implemented independently can be invoked before

and applied by Danish courts and other law-applying authorities. Also

non-incorporated conventions are therefore relevant sources in Danish law.

The report reviews the application of human rights conventions and the

ECHR by Danish courts after the implementation of the ECHR in 1992. It

is pointed out that no other human rights conventions are invoked or

applied to the same extent as the European Convention on Human Rights.

While there were 12 published judgments and orders relating to other

human rights conventions, there were 158 decisions concerning the

European Convention on Human Rights.

The Report also examines how the Parliamentary Ombudsman and some

central administrative bodies (the Directorate of Private Law (Civilretsdirektoratet),

the National Social Appeals Board (Den Sociale Ankestyrelse),

the social boards (sociale nævn) and the Danish Immigration

Service (Udlændingestyrelsen)) apply international human rights

conventions. One conclusion is that the Parliamentary Ombudsman has

found in his practice that specific decisions must comply with the rules of

general legislation, and that the authorities have a duty to involve criteria

derived from human rights on their own initiative, and to impute special

importance to these criteria in their discretionary decisions. Concerning the

essential administrative authorities it is emphasised that there are several

examples of international human rights conventions being involved in the

administrative processing of cases. The Report also examines how the

international human rights conventions are involved in connection with

the legislative process in Denmark.

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A vital element of the Report is the list of advantages and disadvantages of

any incorporation of the conventions into Danish law. It is emphasised that

incorporation can be seen as a strengthening of the citizens’ legal position

in that it is made clear that the citizens have an independent possibility of

invoking the provisions of the conventions directly before the courts or

other law-applying authorities. In this way, incorporation can be seen as a

supplement to the assessment made by the Government and Parliament in

connection with adoption of bills and by administrative authorities in

connection with the administration of legislation. Such incorporation will

create a statutory basis for the application of the incorporated conventions

by the courts and other law-applying authorities, and it will also result in

increased attention and greater consciousness about the incorporated

conventions. The Committee found no significant disadvantages which are

decisively against incorporation.

The Report also discusses what criteria should be emphasised when

assessing what conventions should be incorporated into Danish law.

According to the Report, a very central criterion should be whether the

provisions of a convention are “suitable” for use as a legal basis for the

resolution of concrete disputes pending before the courts or other lawapplying

authorities. Furthermore, importance should be attached to the

question whether monitoring or enforcement bodies have been established

to construe and apply the conventions and, in the affirmative, whether any

case-law exists from these bodies that clarifies the contents and scope of the

provisions of the conventions.

On the basis of these criteria, the Incorporation Committee has assessed

whether the following conventions should be incorporated into Danish

law: (1) the International Covenant on Civil and Political Rights with

pertaining protocols (ICCPR), (2) the International Covenant on Economic,

Social and Cultural Rights (ICESCR), (3) the International Convention on

the Elimination of All Forms of Racial Discrimination (ICERD), (4) the

International Convention on the Elimination of All Forms of

Discrimination against Women with pertaining protocol (ICEDAW), (5) the

International Convention Against Torture and other Cruel, Inhuman or

Degrading Treatment or Punishment (ICAT), and (6) the International

Convention on the Rights of the Child (ICRC).

The Committee recommends incorporation of the ICCPR into Danish law,

emphasising that the ICCPR is a “general convention”, and that it must be

considered “central” to the protection of human rights. The Incorporation


Committee finds that the Covenant must also be considered “suitable” for

application as a legal basis for the resolution of concrete disputes pending

before the courts or administrative authorities. Moreover, the Committee

emphasises that an individual right of complaint has been established.

As regards the ICESCR, the Committee members agree that the Covenant

must be considered “central” to the protection of human rights as it provides

protection for everyone as well as numerous very different rights of great

societal relevance. The ICESCR and the ICCPR are of equal standing and

interconnected, which has been recognised in international resolutions

approved by Denmark. Moreover, together with the Universal Declaration

of Human Rights, these two Conventions constitute the nucleus of the global

human rights protection. In the assessment of whether the ICESCR should

be incorporated, some of the Incorporation Committee members place

decisive emphasis on the fact that the Covenant contains many so-called

policy statements and thus differs from the ICCPR on several, essential

points. Thus, many provisions of the Covenant are of such nature that the

contents of the rights depend to a great extent on their implementation into

national legislation as they impose positive obligations on the States Parties

of a far-reaching economic and social nature. Other Committee members, by

contrast, attach decisive importance to the fact that the civil and political

rights on the one side and the economic, social and cultural rights on the

other side are indivisible and interconnected. These members find that the

political signal given in relation to both the Danish and the international

community on the value attributed to human rights strongly favours

incorporation also of this Covenant, and that this fact can make up for its

possibly poorer applicability in practice for the resolution of concrete legal

disputes. The Committee members agree – despite these differences in

opinion concerning the weighing of the criteria for incorporation – not to

recommend incorporation of the ICESCR into Danish law at present.

The Incorporation Committee recommends incorporation of the ICERD into

Danish law. Although the Convention is a “special convention”, the

Committee emphasises that it is “central” as it protects an absolutely

fundamental human right in all social affairs. The Committee finds that the

majority of the convention provisions must be considered “suitable” for

application as a legal basis for the resolution of concrete disputes. In this

connection the Committee also emphasises that an individual right of

complaint has been established although so far the Committee on the

Elimination of Racial Discrimination has only determined a limited number

of complaints.

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On the basis of the same arguments, the Incorporation Committee also

recommends incorporation of the ICAT into Danish law. The Incorporation

Committee emphasises that an individual right of complaint has been

established. The comprehensive and detailed case-law of the Committee

against Torture in individual cases of complaints means that the convention

provisions will be “suitable” for application as a legal basis for the

resolution of concrete disputes pending before the courts or administrative

authorities. The Incorporation Committee attaches importance to the fact

that it cannot be excluded that the ICAT offers better protection than the

ECHR on certain points, including possibly in respect of the evidence

required to prove that an alien risks being exposed to torture, if returned.

Despite the fact that the ICRC must be considered “central” to the protection of

human rights, the Incorporation Committee finds that it cannot at present

recommend incorporation of this “special convention” into Danish law. At first

an incorporation should only comprise a limited number of conventions.

Moreover the Incorporation Committee emphasises that at present no

individual right of complaint has been established, and so far the

Committee on the Rights of the Child has not adopted general

recommendations on the substantive rights of the Convention.

On the basis of the same arguments as quoted in connection with the ICRC,

the Incorporation Committee recommends that the ICEDAW should not be

incorporated. In the opinion of the Incorporation Committee, importance

should be attached to the fact that the individual right of complaint

introduced in December 2000 has not existed for so long that the Committee

on the Elimination of Discrimination against Women has had the

opportunity to clarify the contents and scope of the obligations of the States

Parties and the resulting rights for the citizens through decisions of

individual complaints.

Finally the Incorporation Committee has discussed how incorporation of

the ICCPR with pertaining protocols, the ICAT and the ICERD should take

place, and what legal effects such incorporation should have. The

Incorporation Committee recommends that these Conventions be made

part of Danish law by enactment, and that the statute should expressly list

the conventions comprised by the incorporation.

The Report includes a bill with explanatory notes.


INTERNATIONAL CONTROL MECHANISMS

The European Court of Human Rights

The European Court of Human Rights (the Court) was set up in pursuance

of the European Convention on Human Rights (ECHR). It is an actual court

which is presided over by judges and hands down judgments within the

framework of the ECHR and the appurtenant protocols. Both individuals

and the various Contracting Parties may submit applications concerning

violations of the ECHR. It is, however, mainly individuals who submit

applications to the Court, claiming violation of their rights. Applications

are made directly to the Court, which then decides whether the case is to

be examined on its merits (admission).

A judgment of the Court against a Contracting State concerning violation

of the ECHR is transmitted to the Committee of Ministers of the Council of

Europe, which supervises its execution. The Committee of Ministers cannot

force a State to abide by the decision of the Court if a State refuses to

recognise such judgment, but as the end consequence, the Committee of

Ministers can exclude the State from the Council of Europe.

International Committees

Committees have been set up pursuant to most of the various international

and European human rights conventions to monitor whether the

contracting states meet the obligations they have undertaken in the

individual conventions.

These committees differ from the European Court of Human Rights in the

sense that they cannot hand down final judgments against contracting

states. When a state has ratified a convention without any reservations, the

state is usually under an obligation to submit reports to the relevant

committee on the human rights situation within the given convention area.

Moreover, a few of these committees pay visits to the contracting states

with a view to examining the conditions themselves. Afterwards the

committees may present their official criticism of legislation, case-law, etc.,

of the particular states, just as they may ask the states to improve particular

circumstances or provide further information.

Some committees are also mandated to deal with complaints from

individuals or other private parties against contracting states. The right of

individuals to complain constitutes a strengthening of such committee and

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22

also reflects a political upgrading of the specific area. A common feature of

the committees is that their members are experts with special knowledge

within the area covered by the individual committee. Moreover, efforts are

being made to ensure that the committees consist of representatives from

the various countries or continents and of experts in the various types of

legal systems. Normally, committee members are nominated by the

individual contracting states and are finally appointed by the relevant UN

or European body. A committee member must, however, be independent

of the nominating state.

Below is a brief presentation of the individual committees, including dates

of relevant reports of Denmark to these committees.

UN Committees

Human Rights Committee (HRC)

The United Nations Human Rights Committee was set up in 1977 in

pursuance of Article 28 of the International Covenant on Civil and Political

Rights (ICCPR). The Committee can deal with communications from a

State which claims that another State fails to fulfil its obligations arising

from the Covenant. In addition, States Parties shall submit reports in which

they account for measures taken to implement the Covenant and for the

progress made. Based on these reports, the Committee presents comments

and recommendations. Finally, pursuant to an Optional Protocol to the

ICCPR, the Committee has jurisdiction to deal with communications from

private individuals. Communications can only be submitted to the

Committee if no similar complaints are submitted to other committees

within the international system. The Committee has 18 members.

The Committee’s most recent examination of Denmark is summarised in

Status 2000, p. 101. Denmark is to submit its fifth report to the HRC on 31

October 2005.

Committee on Economic, Social and Cultural Rights (CESCR)

The Committee was set up by the Economic and Social Council (ECOSOC)

in 1987 for monitoring the implementation of the provisions of the

International Covenant on Economic, Social and Cultural Rights (ICESCR).

The Committee enters into dialogue with the States Parties to ensure full

compliance with the Covenant and to ensure that the rights arising from

the Covenant can actually be enjoyed by the relevant people. Moreover, the

Committee monitors and assists States Parties in drafting new rules of law.


States Parties submit periodic reports to the Committee, which makes its

comments and recommendations on the basis of the reports. So far the

Committee does not deal with individual complaints, but a draft Optional

Protocol establishing such right to submit communications (complaints) is

being considered. The Committee consists of 18 experts.

The Committee’s most recent examination of Denmark is summarised in

Status 1999, p. 95 (Danish edition). Denmark submitted its fourth report to the

Committee in March 2003. The fifth report is to be submitted on 30 June 2006.

Committee on the Elimination of Racial Discrimination (CERD)

The Committee was set up in pursuance of the International Convention

on the Elimination of All Forms of Racial Discrimination (ICERD). The

Committee has jurisdiction to consider complaints from private

individuals against a State Party, just as it receives reports from the States

Parties on legislative, administrative or other measures which they have

adopted to give effect to the provisions of the Convention. Based on these

reports, the Committee presents its comments and recommendations. The

Committee has 18 members, one of them being Morten Kjærum, Executive

Director of the Danish Institute for Human Rights.

The Committee’s most recent examination of Denmark is summarised in

Status 2002, p. 97. Denmark is to submit its 16 th and 17 th reports to the

Committee on 8 January 2005.

Committee against Torture (CAT)

The Committee was set up in pursuance of the International Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (ICAT). Apart from dealing with complaints from States

Parties which claim that another State has violated the Convention, the

Committee also deals with complaints from private individuals against a

State Party. Finally the Committee also receives reports from States Parties

in which they account for measures taken to implement the provisions of

the Convention, as well as other reports requested by the Committee from

time to time. Based on these reports, the Committee presents its comments

and recommendations. The Committee has ten members, including the

Danish doctor Ole Vedel Rasmussen.

The Committee’s most recent examination of Denmark of May 2002 is

summarised in Status 2002, p. 39. Denmark is to submit its fifth report to

the Committee on 25 June 2004.

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24

Committee on the Elimination of Discrimination against Women (CEDAW)

The Committee was set up in 1982 in pursuance of the International

Convention on the Elimination of All Forms of Discrimination against Women

(ICEDAW). The Committee receives reports from the States Parties in which

they account for measures taken to observe the Convention. The reports give

rise to regular reviews of domestic legislation, focusing in particular on rules

which may give rise to direct or indirect discrimination of women. Some

countries, such as Denmark, also include the comments of non-governmental

organisations in the reports. Based on these reports, the Committee makes its

comments and recommendations. The Committee has been mandated since

December 2000 to receive and consider communications from individuals

concerning violation of the Convention rights, but it has not yet had the

opportunity to deliver any opinions in specific matters.

The Committee’s most recent examination of Denmark of May 2001 is

summarised in Status 2002, p. 106. Denmark is to submit its sixth report to

the Committee in May 2004.

Committee on the Rights of the Child (CRC)

The Committee was set up in pursuance of the 1989 International

Convention on the Rights of the Child (ICRC). The Committee receives

regular reports from the States Parties, which shall submit reports every

five years with an account of the conditions of children in the country and

of measures taken to implement the provisions of the Convention.

Individuals cannot submit complaints, but the Committee has authority to

call attention to national conditions which it finds incompatible with the

Convention and to make proposals and recommendations. The Committee

has 10 members.

The Committee’s most recent examination of Denmark of September 1998

is summarised in Status 2001, p. 83. Denmark submitted its third report to

the Committee in August 2003. Denmark is to submit its first report relating

to the Optional Protocol on the involvement of children in armed conflicts

on 27 September 2004.

Committees of the Council of Europe

European Committee of Social Rights (ECSR)

The Committee is an expert committee set up under the auspices of the 1961

European Social Charter. The Committee is to supervise whether the

individual Contracting Parties fulfil the obligations undertaken by them in


the Charter. The Committee makes conclusions and recommendations on

the basis of reports submitted by the Contracting Parties. Individuals

cannot submit complaints concerning the Charter, but the 1995 Second

Additional Protocol provides for a system of collective complaints.

Denmark has signed, but not ratified this Additional Protocol.

At the beginning of 2003, the Committee examined Denmark’s 22 nd report

submitted in May 2002 which concerns Articles 1(4), 2, 3, 4, 9, 10 and 15 of

the Charter and Articles 1, 2, 3 and 4 of the 1988 Additional Protocol. The

conclusions are referred to in the section on the Rights of the Disabled and

in the section on Economic, Social and Cultural Rights.

Denmark submitted its 23 rd report on 19 September 2003 concerning

Articles 1, 5, 6, 12, 13, 16 and 19 of the Charter. The Committee will submit

its conclusions in February 2004. Denmark is to submit its next report in

March 2004.

European Committee for the Prevention of Torture and Inhuman or Degrading

Treatment or Punishment (CPT)

The Committee was set up in pursuance of the 1987 European Convention

for the Prevention of Torture and Inhuman or Degrading Treatment or

Punishment. The Committee is to examine the treatment of detainees, i.e.

typically people who have been arrested or remanded in custody and

prison inmates, to strengthen the protection of such persons from torture

and inhuman or degrading treatment or punishment. The Committee has

a number of members corresponding to the number of countries which

have acceded to the Convention. The Committee issues official

recommendations on the basis of regular visits to the institutions of the

Contracting States. Individuals cannot submit complaints.

The Committee visited Denmark most recently from 28 January to 4

February 2002. The Committee’s recent examination of Denmark is

summarised in Status 2002, p. 36. The Danish Government responded to

the Committee Conclusions in August 2003. The Danish report is available

on the website of the Danish Parliament: www.folketinget.dk

European Commission against Racism and Intolerance (ECRI)

The Commission was set up in 1994 at the first summit of heads of state and

government of the member States of the Council of Europe with a view to

counter racism, xenophobia, anti-Semitism and intolerance. The

Commission is to review the legislation of the member States, take other

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26

initiatives to counter racism and intolerance and suggest additional

initiatives at local, regional and European level. The Commission gathers

information from public authorities, relevant institutes and nongovernmental

organisations. Individuals cannot submit complaints.

The latest visit paid by the Commission to Denmark was in April 2000. The

Commission’s most recent examination of Denmark is summarised in

Status 2001, p. 76.

Advisory Committee on the Framework Convention for the Protection of National

Minorities

The Committee was set up in pursuance of the 1994 Framework

Convention of the Council of Europe for the Protection of National

Minorities. The Committee is to consider whether national legislation of

Contracting Parties is in conformity with the framework Convention. To do

so the Committee receives periodic reports from the Contracting Parties,

but it can also gather information from others, such as non-governmental

organisations and individuals. The Committee makes its conclusions on the

basis of these reports. Individuals cannot submit complaints.

The Committee’s examination of Denmark’s first report of 6 May 1999 is

summarised in Status 2001, p. 79.

Expert Committee of the European Charter for the Regional or Minority

Languages

The Committee was set up in pursuance of the 1992 European Charter for

the Regional or Minority Languages. The committee is composed of one

member per Party, who must be individuals of the highest integrity and

recognised competence in the matters dealt with in the Charter. The Parties

shall present periodic reports to the Committee on measures taken by them

to implement the Charter. In connection with its examination of such

reports, the Committee may also receive information from bodies or

associations in the relevant state. On the basis of these reports and the

Parties’ comments, the Committee shall draw up conclusions and prepare

reports to the Committee of Ministers, which shall decide from case to case

whether the reports are to be made public, and shall make any

recommendations to the Parties. Moreover the Committee also visits State

Parties when they have submitted their periodical reports. Individuals

cannot submit complaints.


Denmark submitted its most recent report on 3 December 2002. The

Committee visited Denmark from 12 to 15 May 2003. The conclusions

concerning Denmark had not been published yet at the close of the editorial

work.

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Right to Life

28

GENERAL RIGHTS

Right to Life

Convention provisions: Article 2 of the ECHR and Article 6(1) of the ICCPR.

Article 2 of the Charter of Fundamental Rights of the European Union.

Article 2 of the ECHR

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his

life intentionally save in the execution of a sentence of a court following his

conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this

Article when it results from the use of force which is no more than absolutely

necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully

detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

1. Bills

Title:

Bill amending the Act on Induced Abortion and the Act on Sterilisation

and Emasculation (embryo reduction, induced abortion at private

hospitals and abolition of the residence requirement)

Background:

When enacted, one of the things introduced by the Bill will be legal

regulation of embryo reduction. So far this field has not been governed by

law, although the principles of the Act on Induced Abortion and the

Medical Act have been applied. The Bill proposes the insertion of a new

Part in the Act on Induced Abortion stating the situations where embryo

reduction may be permitted for medical reasons.

Human rights:

Article 2 of the ECHR on the right to life and Article 8 of the ECHR on the

right to respect for family and private life.

Assessment by the Institute:

The Danish Institute for Human Rights finds that the proposed amendment

is not contrary to Article 2 – the right to life – or Article 8 – the right to


espect for family and private life – of the European Convention on Human

Rights.

The Institute finds that direct legislation within the field of embryo

reduction and fixing of medically objective criteria intended to reduce

significant risks for the embryos or the health of the woman must be

deemed a positive development.

Considering the significant health risks, the Institute finds that the fact that

the possibility of embryo reduction is mainly reserved for high-order

pregnancies must be deemed to accord best with the human rights

principles of respect for human dignity and respect for the woman’s right

to self-determination.

References:

Act No. 435 of 10 June 2003.

Entry into force: 1 July 2004.

Bill No. L 184, introduced in writing on 12 March 2003: Supplement A, column 5581.

The Bill as adopted: Supplement C, column 758.

Bill amending the Act on Induced Abortion and the Act on Sterilisation and Emasculation

(embryo reduction, induced abortion at private hospitals and abolition of the residence

requirement), distributed as an enclosure to the consultation papers of 25 November 2002

from the Ministry of Justice.

Reply of the Institute of 5 February 2003, prepared by Birgitte Kofod Olsen and Christoffer

Badse.

2. Danish court decisions

Eastern and Western High Courts:

No judgments concerning the right to life have been published in the period

under review.

Supreme Court:

No judgments concerning the right to life have been published in the period

under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the right to life have been published in the period

under review.

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Prohibition of Torture

30

4. Judgments of the European Court of Human Rights

No judgments or decisions concerning the right to life have been published

with Denmark as a party to the case in the period under review.

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The Human Rights Committee (HRC).

Opinions:

Human Rights Committee

The Committee has not examined Denmark in the period under review.

Concrete cases:

Human Rights Committee

No complaints against Denmark for violation of the right to life have been

considered in the period under review.

6. Government initiatives

On 28 November 2002 Denmark ratified Protocol No. 13 to the European

Convention on Human Rights, concerning the abolition of the death

penalty in all circumstances.

Entry into force: 1 July 2003.

Prohibition of Torture and Inhuman or Degrading Treatment

or Punishment

Convention provisions: Article 3 of the ECHR, Article 7 of the ICCPR and

Article 3 of the ICAT.

Article 4 of the Charter of Fundamental Rights of the European Union.

Article 3 of the ECHR

No one shall be subjected to torture or to inhuman or degrading treatment or

punishment.


1. Bills

Title:

Draft Bill amending the Act on Extradition of Offenders and the Act on

Extradition to Finland, Iceland, Norway and Sweden (implementation of

Council Framework Decision on the European arrest warrant and the

surrender procedures between Member States)

Background:

The Bill is intended to ensure compliance with the Council Framework

Decision on the European arrest warrant adopted on 13 June 2002.

According to the Bill, it must be possible to extradite suspects for

prosecution in other Member States upon request – in some situations

irrespective of whether the offence in question is punishable under

Danish law. The Bill also involves the risk for Danish nationals of being

remanded in custody or prosecuted or, depending on circumstances,

having to serve a sentence under conditions and rules applicable in other

Member States.

Human rights:

Article 3 of the ECHR and Article 7 of the ICCPR prohibiting torture and

cruel, inhuman or degrading treatment or punishment, Article 10 of the

ICCPR on treatment of persons deprived of their liberty, and Article 6 of the

ECHR and Article 14 of the ICCPR on a fair trial.

Assessment by the Institute:

The fact that the Act on Extradition of Offenders lays down a prohibition

against extradition for enforcement of the death penalty, but no provisions

concerning extradition where there is a risk of torture or an unfair trial may,

in the view of the Institute, lead to an unnecessary lack of procedural

safeguards. The Institute therefore finds that the intention to observe

Denmark’s international obligations in these fields should be reflected in

the wording of the Act in the form of specific provisions on the right to

refuse extradition if there is reason to believe that the suspect will be

subjected to a treatment that may involve violation of the above provisions

of the ECHR and the ICCPR. This also applies to extradition to countries

other than Member States.

Prohibition of Torture

31


Prohibition of Torture

32

References:

Act No. 433 of 10 June 2003.

Entry into force: 1 January 2004.

Bill No. L 168, introduced in writing on 26 February 2003: Supplement A, column 4359.

The Bill as adopted: Supplement C, column 617.

Draft Bill amending the Act on Extradition of Offenders and the Act on Extradition to Finland,

Iceland, Norway and Sweden (implementation of Council Framework Decision on the

European arrest warrant and the surrender procedures between Member States), distributed

as an enclosure to the consultation papers of 19 December 2002 from the Ministry of Justice.

Reply of the Institute of 23 January 2003, prepared by Ida Elisabeth Koch.

Title:

Signing and ratification of the Optional Protocol to the International

Convention against Torture

Background:

On 18 December 2002 the UN General Assembly adopted the Optional

Protocol to the International Convention against Torture. The Protocol

includes provisions on the creation of an international sub-committee to

prevent torture and other forms of ill-treatment. The States Parties

undertake to set up or keep in place one or more national visiting bodies

with powers to make visits to places of detention to prevent torture and

other ill-treatment.

Human rights:

The International Convention against Torture and other Cruel, Inhuman

or Degrading Treatment or Punishment. Article 7 of the ICCPR

prohibiting torture and cruel, inhuman or degrading treatment or

punishment and Article 10 of the ICCPR on treatment of persons deprived

of their liberty.

Assessment by the Institute:

To a great extent the Protocol aims at torture prevention and emphasises

both in the preamble and in several of the Articles that prevention spans

the traditional division of human rights into civil and political rights, and

economic, social and cultural rights. According to Articles 2 and 16 of the

Convention, the States Parties undertake to take effective measures to

prevent acts of torture, and the preamble of the Protocol recalls that

effective prevention of torture requires education. The preamble also recalls

that effective prevention of torture requires a combination of various

legislative, administrative, judicial and other measures, some of which will

necessarily extend to social affairs and the health sector. Moreover, the

States Parties undertake according to Article 18 of the Protocol to make


available the necessary resources for the functioning of the national

preventive mechanisms.

In this way the Protocol indirectly highlights the principle of the human

rights as indivisible, interrelated and interdependent rights. Therefore the

Institute finds occasion to urge the Ministry to accelerate its efforts to

ensure that Denmark will get a similar active role in safeguarding the

economic, social and cultural rights. The Institute unconditionally supports

early Danish signing and ratification of the Optional Protocol and looks

forwards to its involvement in the discussion about the actual

implementation of the Protocol in Denmark.

Note:

Denmark signed the Optional Protocol to the International Convention against

Torture on 26 June 2003. It is expected that a motion will be introduced to the Danish

Parliament in November 2003 on ratification of the Protocol.

References:

Letter of 28 January 2003 from the Ministry of Foreign Affairs requesting an opinion

about the signing and ratification of the Optional Protocol to the International

Convention against Torture.

Reply of the Institute of 17 February 2003, prepared by Ida Elisabeth Koch.

2. Danish court decisions

No judgments concerning the prohibition of torture and inhuman or

degrading treatment or punishment have been published in the period

under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the prohibition of torture and inhuman or

degrading treatment or punishment have been published in the period

under review.

In the period under review, the Parliamentary Ombudsman inspected at

his own initiative:

Holbæk Local Prison on 11 June 2003.

Bramsnæsvig Home (sheltered accommodation for the mentally ill) on 12

May 2003.

Silkeborg Local Prison on 7 April 2003.

Detention cells at Silkeborg Police Station on 7 April 2003.

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Prohibition of Torture


Prohibition of Torture

34

Waiting rooms at Silkeborg Police Station on 7 April 2003.

Psychiatric ward for children and young people, Unit F of Bispebjerg

Hospital on 27 March 2003.

Lysholmgård Halfway House on 12 March 2003.

Waiting rooms at Hobro Police Station on 27 February 2003.

Sdr. Omme State Prison on 28 and 29 January 2003.

Waiting rooms at Aalborg Police Station on 26 February 2003.

Helsingør Local Prison on 11 December 2002.

Detention cells at Helsingør Police Station on 11 December 2002.

Munkehatten Home (sheltered accommodation for adults with

developmental disabilities) in Odense on 16 October 2002.

Prison for detained asylum-seekers at Sandholm on 25 November 2002.

Secured Institution of Stevnsfortet on 9 December 2002.

The Ombudsman’s reports on the inspections are available in Danish at the

website of the Ombudsman’s office:

http://www.ombudsmanden.dk/index.asp?art=indhold.htm&id=indhold&fold=i

nspektioner

4. Judgments of the European Court of Human Rights

No judgments or decisions concerning the prohibition of torture and

inhuman or degrading treatment or punishment have been published with

Denmark as a party to the case in the period under review.

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The European Committee for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment (CPT), the Committee against Torture

(CAT) and the Human Rights Committee (HRC).

Opinions:

European Committee for the Prevention of Torture and Inhuman or Degrading

Treatment or Punishment

The Committee has not examined Denmark in the period under review.

Committee against Torture

The Committee has not examined Denmark in the period under review.


Human Rights Committee

The Committee has not examined Denmark in the period under review.

Concrete cases:

Committee against Torture

The Committee has not considered any complaints against Denmark in the

period under review.

Human Rights Committee

The Committee has not considered any complaints against Denmark in the

period under review.

6. Government initiatives

See the paragraph on ‘Signing and ratification of the Optional Protocol to

the International Convention against Torture’ under the subsection on

Bills.

Prohibition of Slavery and Forced Labour

Convention provisions: Article 4 of the ECHR and Article 8 of the ICCPR.

Article 5 of the Charter of Fundamental Rights of the European Union.

Article 4 of the ECHR

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not

include:

a) any work required to be done in the ordinary course of detention imposed

according to the provisions of Article 5 of this Convention or during conditional

release from such detention;

(b) any service of a military character or, in case of conscientious objectors in

countries where they are recognised, service exacted instead of compulsory military

service;

(c) any service exacted in case of an emergency or calamity threatening the life or

well-being of the community;

(d) any work or service which forms part of normal civic obligations.

1. Bills

No bills concerning the prohibition of slavery and forced labour have been

introduced in the period under review.

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Prohibition of Slavery and Forced Labour

36

2. Danish court decisions

Eastern and Western High Courts:

No judgments concerning the prohibition of slavery and forced labour have

been published in the period under review.

Supreme Court:

No judgments concerning the prohibition of slavery and forced labour have

been published in the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the prohibition of slavery and forced labour have

been published in the period under review.

4. Judgments of the European Court of Human Rights

No judgments or decisions concerning the prohibition of slavery and forced

labour have been published with Denmark as a party to the case in the

period under review.

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The Human Rights Committee (HRC).

Opinions:

Human Rights Committee

The Committee has not examined Denmark in the period under review.

Concrete cases:

Human Rights Committee

No complaints against Denmark for violation of the prohibition of slavery

and forced labour have been considered in the period under review.

6. Government initiatives

Action Plan to Combat Trafficking in Women

In December 2002 the Government published a comprehensive Action Plan

against trafficking in women, please refer to the section on the Rights of

Women.


Right to Liberty and Security

Convention provisions: Article 5 of the ECHR and Article 9 of the ICCPR.

Article 6 of the Charter of Fundamental Rights of the European Union.

Section 71 of the Danish Constitution.

Article 5 of the ECHR

1. Everyone has the right to liberty and security of person. No one shall be deprived

of his liberty save in the following cases and in accordance with a procedure

prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful

order of a court or in order to secure the fulfilment of any obligation prescribed by

law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing

him before the competent legal authority on reasonable suspicion of having

committed an offence or when it is reasonably considered necessary to prevent his

committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational

supervision or his lawful detention for the purpose of bringing him before the

competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious

diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised

entry into the country or of a person against whom action is being taken with a

view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he

understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1

(c) of this Article shall be brought promptly before a judge or other officer authorised

by law to exercise judicial power and shall be entitled to trial within a reasonable

time or to release pending trial. Release may be conditioned by guarantees to appear

for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to

take proceedings by which the lawfulness of his detention shall be decided speedily

by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the

provisions of this Article shall have an enforceable right to compensation.

Section 71 of the Danish Constitution

(1) Personal liberty shall be inviolable. No Danish subject shall, in any manner

37

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Right to Liberty and Security

38

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 involve only

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.

1. Bills

Title:

Draft Executive Order on Custody and draft Guidelines on Custody

Background:

By letter of 3 July 2003 with enclosures the Department of Prisons and

Probation under the Ministry of Justice requested the Institute for any

comments it may have to the draft Executive Order on Custody and the

draft Guidelines on Custody. The Institute has reviewed the two drafts and

made the following comments.

Human rights:

The European Prison Rules, adopted by the Committee of Ministers of the

Council of Europe on 12 February 1987, establishes detailed standards for

untried prisoners.


Even though these standards are not binding under international law, the

standards provide a relevant legal basis of construction because in practice

they are an aid to construction of instruments such as the European

Convention on Human Rights.

Assessment by the Institute:

The Institute lacks a reference to the European Prison Rules in the draft

Executive Order on Custody, possibly similar to that of section 40(2) of the

former Executive Order on Sentence Enforcement, cf. Executive Order No.

423 of 21 June 1973 as amended.

Further to this the Institute is concerned about the wording of section 19 of

the draft according to which it is possible to temporarily transfer a detainee

to the Herstedvester Institution if the detainee requires psychiatric

assistance, but “cannot be hospitalised at a psychiatric ward or the like”.

This provision does not distinguish between insanity and other mental

suffering and may therefore give rise to unnecessary misunderstandings.

According to Article 100 of the European Prison Rules, persons who are

found to be insane should not be detained in prisons, but in appropriate

establishments for the mentally ill. In spite of its special treatment offers,

the Herstedvester Institution is a prison, and, depending on circumstances,

a consequence of the wording of section 19 may be that the local prisons

fail to insist on the duty of the county psychiatric hospitals under the

Psychiatry Act and the Danish hospital legislation in general to treat such

persons. The wording also gives rise to the risk that the psychiatric

hospitals will find it justified to refuse mentally ill remand prisoners. The

comments of the Institute to this issue naturally also relate to the

corresponding provision of Part 7 of the draft Guidelines on Custody.

According to the proposed section 44(2), it may be required that a

conversation is conducted in a language understood by the person

supervising the visit. It has furthermore been stated that if circumstances

so justify, an interpreter may be summoned. A corresponding wording has

been used in section 75(5) on telephone calls. The Institute finds that this

wording does not sufficiently take into consideration foreign detainees’

need for contact to the outside world, cf. in this respect also Article 45 of

the European Prison Rules. The wording does not impose on local prisons

any duty to request the assistance of interpreters in the situations where the

detainees do not master the same language(s) as the prison staff. In this

connection the Institute notes that the need for more widespread use of

interpreters may increase as a consequence of the implementation of the

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Council Framework Decision on the European arrest warrant and the

surrender procedures between Member States.

According to section 69 of the draft Executive Order on Custody, a remand

prisoner is entitled to unchecked exchange of letters with certain persons

and authorities. The Institute considers it a shortcoming that remand

prisoners subjected to the Danish Probation Service are not mentioned. The

Institute also finds that the provision of section 61 of the draft Guidelines

on Custody concerning unchecked exchange of letters with the priest

attached to the local prison should be moved to the Executive Order for

reasons of due process. Moreover the Institute is surprised by the choice of

international monitoring bodies and finds that remand prisoners should at

least be allowed unchecked exchange of letters with the committees with

competence to receive and consider complaints from individuals.

Therefore, in the Institute’s opinion the list should be expanded to include

the United Nations Committee on the Elimination of Racial Discrimination

and the United Nations Committee on the Elimination of Discrimination

against Women.

References:

Draft Executive Order on Custody and draft Guidelines on Custody, distributed as an

enclosure to the consultation papers of 3 July 2003 from the Department of Prisons and

Probation under the Ministry of Justice.

Reply of the Institute of 20 August 2003, prepared by Ida Elisabeth Koch.

Title:

Bill amending the Act on Social Services (use of force and other

interference with the right to self-determination – special door-openers,

restraint and removal)

Background:

The Bill specifies the duty of care of individuals with significantly and

permanently impaired mental functionality. The Bill contains provisions on

restraint of individuals in personal care situations, mitigation of the criteria

for removing individuals who are unable to give informed consent, and

improvement of the possibilities of using personal alarm and paging

systems.

Assessment by the Institute:

In the proposed section 109b(2), the Bill authorises the use of physical

power for a restricted period if deemed absolutely necessary in order to

exercise the duty of care. The Institute finds, however, that this provision


too may give rise to doubt, particularly because the duty to provide

personal care is not a concept with a fixed definition. Therefore the

borderline between section 67a and section 109b(2) may become blurred

because the specification given in section 67a may lead to uncritical use of

section 109b(2). The Bill states that an executive order will be drafted to

define the situations when power could be relevant in order to provide

personal care. The Institute finds, however, that it should also be

considered whether and in what way the Bill itself could be clarified,

possibly by using an adjective qualifying the authorised use of power.

According to section 109a(1) of the Act on Social Services, the risk must be

imminent. The Bill weakens the requirement although, according to the

explanatory notes, the risk may not be insignificant, cf. the explanatory

notes of section 1.

Since the proposed section 109a(2) on the use of special door-openers in fact

provides for detention, the Institute finds that such restraint should be

subject to the same civil rights protection as the protection applicable under

sections 109j and 109k to retention in living quarters under section 109c and

to admission to special accommodation under section 109e. It also appears

from para. 3.2 of the explanatory notes that this issue is governed by section

71(6) of the Danish Constitution.

The proposed section 109e(2) on admission of the severely demented to

special accommodation suggests a distinction between the individuals who

actively object and those who remain passive. Moreover the criteria

determining when the passive can be admitted to such special

accommodation are weakened, and the requirement of assigned counsel

applicable so far has been removed. Since the right to a court hearing is

maintained, it is somewhat unclear whether such removal will still be

considered coercion, or whether passivity will from now be considered as

consent. In its previous replies the Danish Centre for Human Rights argued

in favour of interpreting the concept of coercion to include the passive

situation. Accordingly the Institute finds that the proposed legal

amendment will not sufficiently safeguard the civil rights of people with

dementia. In this assessment the Institute emphasised that section 109g(4)

does not require appointment of a guardian before the decision on

admission to special accommodation is made. According to the Bill, the

passive person risks being left entirely without any assistance.

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References:

Act No. 343 of 14 May 2003.

Entry into force: 1 July 2003.

Bill No. L 136, introduced in writing on 29 January 2003: Supplement A, column 3363.

The Bill as adopted: Supplement C, column 367.

Bill amending the Act on Social Services (use of force and other interference with the right to

self-determination – special door-openers, restraint and removal), distributed as an enclosure

to the consultation papers of 15 November 2002 from the Ministry of Social Affairs.

Reply of the Danish Centre for Human Rights of 5 December 2002, prepared by Ida Elisabeth

Koch.

The Danish Centre for Human Rights has previously given its opinion about these issues and

refer to its memoranda of 12 May and 7 October 1998 on the (draft) Bill amending the Act on

Social Services.

2. Danish court decisions

Eastern and Western High Courts:

No judgments concerning the right to liberty and security have been

published in the period under review.

Supreme Court:

No judgments concerning the right to liberty and security have been

published in the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the right to liberty and security have been

published in the period under review.

4. Judgments of the European Court of Human Rights

Cases decided:

Vasileva v. Denmark, application No. 52792/99, judgment of 25 September

2003.

Decision: Article 5 of the ECHR has been violated.

The facts of the case

On 11 August 1995 on a public bus in the city of Århus the applicant, Sofiika

Vasileva, had a dispute with a ticket inspector, who accused her of

travelling without a valid ticket. Since she refused to disclose her identity,

the police were called.

Since she still refused to give her name and address, she was arrested in

accordance with section 755(1), cf. section 750, of the Administration of


Justice Act and brought to the police station. It was at 9:30 in the evening.

She was deprived of her personal belongings and put in a waiting room,

and at 11:00 p.m. she was moved to a detention cell.

Vasileva only revealed her identity the next morning at 11:00 a.m. and was

consequently released. Immediately after her release, she collapsed and

was hospitalised for three days diagnosed with high blood pressure.

Vasileva complained about the detention to the Chief Constable of Århus

on 16 August 1995 and 14 June 1996, but her complaint was refused. It was

noted that she had been detained for security reasons and that the length

of her detention of 13? hours was attributable to her mental condition and

her unwillingness to reveal her identity. It was also emphasised that the

police several times in vain requested the applicant to reveal her identity.

However, in view of her relatively advanced age the Chief Constable found

reason to regret that the applicant had not been attended by a doctor in

connection with her placement in the detention cell.

Vasileva made a claim for compensation to the Regional Public Prosecutor

of Viborg, who refused to grant her compensation on 6 February 1997. The

decision was appealed to the Director of Public Prosecutions, who upheld

the decision on 25 November 1997.

Thereafter she brought her claim for compensation before the District Court

of Århus, which passed its judgment on 25 September 1998. The District

Court said that it was unknown which efforts were taken to identify the

applicant from 11 August at 11:00 p.m. to 12 August at 6:30 a.m. and

emphasised moreover that she had been denied medical treatment during

her detention. Having regard to the fact that the applicant had been

detained for breaching section 750 of the Administration of Justice Act, the

police officers on duty were under an obligation continuously to make

attempts to establish her identity, and to secure that the detention did not

exceed a period proportionate to the cause of the detention, cf. the principles

set out in section 760(1) and section 755(4) of the Administration of Justice

Act. Under these circumstances, the District Court found that there was no

reason to extend the detention until the following day at 11:00 a.m.

Accordingly the applicant was entitled to compensation in the amount of

DKK 2,200 pursuant to section 1018a(1) of the Administration of Justice Act.

The Prosecution appealed against the judgment to the Western High Court,

which stated by judgment of 11 February 1999 that the applicant had been

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44

requested continuously to reveal her name and address and that she had

been released as soon as she had disclosed her personal data. Consequently

the High Court found that there was no basis for granting compensation to

the applicant pursuant to section 1018a of the Administration of Justice Act.

The applicant then applied to the Board of Appeal for leave to appeal to the

Supreme Court, but the application was refused on 25 May 1999.

The Court’s assessment

Vasileva lodged an application with the European Court of Human Rights

(the Court) on 10 August 1999. She complained that her detention for 13,5

hours had been in breach of Article 5(1) of the European Convention on

Human Rights (ECHR) concerning the right to liberty and security.

The parties did not dispute that the detention was ‘deprivation of liberty’

within the meaning of Article 5 or that the deprivation of liberty was in

accordance with a procedure prescribed by Danish law as it was imposed

pursuant to section 755(1), cf. section 750, of the Administration of Justice

Act because the applicant refused to disclose her identity to the police upon

request.

The Court maintained that the detention should be examined under Article

5(1)(b), which authorises detention in order to “secure the fulfilment of the

obligation prescribed by law”. It follows that there must be an obligation

incumbent on the person concerned, and the arrest and detention must be

for the purpose of securing its fulfilment, but not punitive in character. As

soon as the obligation prescribed by law has been fulfilled, the basis for

detention under Article 5(1)(b) ceases to exist.

Finally the Court recalled that a balance must be struck between the

importance in a democratic society of securing the immediate fulfilment of

the law and the importance of the right to liberty. In this assessment the

nature of the obligation arising from the relevant legislation, including its

underlying object and purpose, the person being detained, the particular

circumstances leading to the detention and the length of the detention must

be considered.

The nature of the obligation arising from the relevant legislation, including its

underlying object and purpose

The applicant was arrested and detained because she refused to disclose

her identity to the police as prescribed by section 750 of the Administration


of Justice Act, and she was released as soon as she had done so. It follows

that the applicant was detained in order to secure the fulfilment of an

obligation as required by Article 5(1)(b) and she was released as soon as the

obligation had been fulfilled.

The Court also recalled that it is a fundamental condition for the police in

order to carry out their tasks, and thus ensure law enforcement, that they

can establish the identity of citizens.

The person detained and the particular circumstances leading to the detention

Although the applicant was arrested exclusively because she refused to

furnish information about her identity to the police, their motive for

approaching her was related to their task being the forces of law and order.

Both public and private transportation companies would be powerless if

they were not able to obtain an efficient assistance by the police in such

situations.

The Court reiterated that the applicant was 67 years old when she was

arrested. As to her state of health and her hospitalisation, the Court noted

that it had not been established that the police were aware that she suffered

from high blood pressure. The Court also noted that the applicant refused

to reveal her identity because she was angry, and she maintained this anger

and reluctance until the next morning. In these circumstances the Court

found that it was in accordance with section 750 of the Administration of

Justice Act and Article 5(1)(b) of the ECHR to detain the applicant in order

to establish her identity.

The length of the detention

The applicant was deprived of her liberty for 13? hours. The applicant was

not in possession of any documentation which could have revealed her

identity. The Court noted that the police several times in vain requested that

she reveal her identity in the period from 9:30 until 11:00 p.m. on 11 August

1995 and from 6:30 until 10:45 a.m. on 12 August 1995. However, no efforts

were made to identify her in the period between 11:00 p.m. on 11 August

and 6:30 a.m. on 12 August.

The Court found that it had not been established, as alleged by the Danish

Government, that the reason could be attributed to considerations as to the

applicant’s need for sleep. The Court noted that such consideration could

not be given priority over the obligation to secure that the detention did not

exceed a period proportionate to the cause of the detention.

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46

The Court also found reason to regret that the applicant had not been

attended to by a doctor.

Having regard to the above and to the fact that the applicant’s failure to

comply with section 750 of the Administration of Justice Act was a minor

offence, which could only carry a fine, the Court found that her detention

should not have been maintained for a prolonged period of time. For this

reason the length of the detention exceeded a period proportionate to the

cause of her detention. Therefore the authorities failed to strike a fair

balance between the need to ensure fulfilment of the obligation and the

right to liberty, and accordingly there had been a violation of Article 5(1) of

the ECHR.

Accordingly, the applicant was entitled to compensation in the amount of

EUR 500 in pursuance of Article 41 of the ECHR.

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The Human Rights Committee (HRC).

Opinions:

Human Rights Committee

The Committee has not examined Denmark in the period under review.

Concrete cases:

Human Rights Committee

No complaints against Denmark for violation of the right to liberty and

security have been considered in the period under review.

Right to a Fair Trial

Convention provisions: Article 6 of the ECHR and Article 14 of the ICCPR.

Article 48 of the Charter of Fundamental Rights of the European Union.

Article 6 of the ECHR

1. In the determination of his civil rights and obligations or of any criminal charge

against him, everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by law. Judgment shall

be pronounced publicly but the press and public may be excluded from all or part

of the trial in the interests of morals, public order or national security in a


democratic society, where the interest of juveniles or the protection of the private

life of the parties so require, or to the extent strictly necessary in the opinion of the

court in special circumstances where publicity would prejudice the interests of

justice.

2. Everyone charged with a criminal offence shall be presumed innocent until

proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of

the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or,

if he has not sufficient means to pay for legal assistance, to be given it free when

the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the

attendance and examination of witnesses on his behalf under the same conditions

as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the

language used in court.

1. Bills

Title:

Draft Bill amending the Criminal Code and the Administration of Justice

Act (fight against biker crime and other organised crime)

Background:

The Bill amends the provisions of the Administration of Justice Act on the

use of agents, the right to conceal the identity of certain police officers, and

the right of counsel and the defendant to inspect documents. The

amendment also gives rise to an extended right to effect confiscation in

cases concerning drugs, aggravated tax fraud, aggravated VAT fraud or

smuggling of a particularly aggravated nature, as well as an extended right

to effect telephone tapping and data interception.

Human rights:

The proposals set out in the Bill interfere with the right to a fair trial

protected by Article 6 of the European Convention on Human Rights, the

right to private life protected by Article 8 of the Convention, and the right

to protection of property stipulated by Article 1 of the First Protocol to the

Convention.

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The said provisions contain specific duties on the Government to see to the

protection of the said rights and they also draw up principles for the

construction of the provisions.

Assessment by the Institute:

Generally, the Institute considers it positive that, by introducing the Bill, an

attempt is made to combat crime of a form detrimental to both society and

to the protection of civil rights, including the rights of citizens who become

victims of serious criminal acts.

Expansion of the field of agents is deemed by the Institute to satisfy the

human rights requirement of procedural guarantees; however, there is a

risk that the use of agents in specific situations may be deemed contrary to

human rights.

Regarding the use of undercover agents, the Institute notes that, in terms

of human rights, it must be a prerequisite that the conditions of suspicion,

indication and crime laid down in section 754a of the Administration of

Justice Act have been satisfied before the police may ask a civil person for

assistance.

In addition, the Institute would highlight the problem that an undercover

agent familiar to the criminal environment might instigate offences that

would not have been committed without their intervention; and such

intervention might mean that the accused will be deprived of a fair trial

right from the outset.

Examination of witnesses, including police agents and other police officers,

without revealing their identity is not in itself contrary to Article 6.

However, the condition for using anonymous witnesses is that the rights of

the defendant are observed and that the weaker position of the defence is

offset by the directions of the court.

The court may order closed doors, but only where publicity or the like will

not be in the best interests of justice. In terms of human rights, it is not

obvious in the assessment of the Institute that the prosecutor should be

allowed to make an unconditional requirement of closed doors.

The Bill restricts the right to inspect documents solely to the material

procured for the particular case in which the relevant person is the suspect

or accused. The Institute finds that the present state of law in Denmark,


where inspection of documents is permitted to the extent that the

documents are deemed to be connected with the relevant case, accords best

with the human rights criterion of relevance.

To a great extent the Institute agrees with the considerations of the Ministry

of Justice concerning the human rights consequences of deviating from the

right to inspect documents. The Institute finds, however, that the alteration

of the requirement of necessity from the present ‘exceptionally required’ to

the proposed ‘required’ may lead to a risk of setting aside the condition of

the European Court of Human Rights that no restriction of the right to

inspect documents should be allowed, unless such intervention is ‘strictly

necessary’.

The Institute finds that it might be problematic to assign other counsel for

the defence in connection with a request for withholding of information

because such counsel has no prior knowledge of the case. The protective

interest in such withholding of information may be safeguarded by

ordering the existing counsel for the defence not to pass on any information

of the investigation to the defendant.

The scope of application of the new provision on confiscation seems to be

vaguely defined and there is therefore, in the Institute’s point of view, a risk

of disregarding the human rights requirements of accuracy and

predictability of the legal basis.

The Institute finds it positive that the proposed new right to interfere with

the secrecy of communication in cases concerning procuration makes it

possible to investigate crimes of organised exploitation of vulnerable

women. It is essential, though, that any interference with the secrecy of

communication observes the human rights requirement of ‘exceptional

circumstances’ and ‘strictly necessary’.

In case of no or postponed notification of an interference with the secrecy

of communication, in order for the measure to be compatible with human

rights it is crucial that a concrete assessment of necessity is made between

not notifying or postponing the notification and the object aimed at by the

interference.

In relation to the extended right to intercept data, the Institute would

emphasise that satisfaction of both the human rights requirement of

‘exceptional circumstances’ and ‘strictly necessary’ and the requirement of

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proportionality is crucial to the compatibility of the practical use of data

interception with human rights. The Institute further notes that the police

must also be considered to be obliged to see to the destruction of any

surplus material included in the investigative material as a consequence of

data interception.

References:

Act No. 436 of 10 June 2003.

Entry into force: 12 June 2003.

Bill No. L 218, introduced in writing on 23 April 2003: Supplement A, column 6770.

The Bill as adopted: Supplement C, column 817.

Draft Bill amending the Criminal Code and the Administration of Justice Act (fight against

biker crime and other organised crime), distributed as an enclosure to the consultation papers

of 13 March 2003 from the Ministry of Justice.

Reply of the Institute of 22 April 2003, prepared by Birgitte Kofod Olsen.

Title:

Commission Green Paper: Procedural Safeguards for Suspects and

Defendants in Criminal Proceedings throughout the European Union

Background:

The Ministry of Justice has requested an opinion about the Commission

Green Paper on Procedural Safeguards for Suspects and Defendants in

Criminal Proceedings throughout the European Union. On this occasion

the Danish Institute for Human Rights has examined the Green Paper and

the enclosed memorandum from the Ministry.

Human rights:

Article 6 of the ECHR.

Assessment by the Institute:

The Green Paper – which is characterised as a discussion paper in the

memorandum from the Ministry – aims at fixing common minimum

standards for all Member States on the procedural safeguards for persons

who are suspected of, charged with, or sentenced for a criminal offence. The

Green Paper must been seen in the light of the attempts otherwise made by

the European Union to establish closer cooperation between the police and

judicial authorities of the Member States by mutual recognition of orders

and judgments in criminal proceedings and by extradition for prosecution.

In principle, the Institute considers it positive that the Commission has

launched a discussion about the need for initiatives at the European level.

Already today the existing criminal procedural guarantees are nonuniform


in the Member States and will presumably become more nonuniform by

the EU enlargement with ten new Member States. Most recently the issue

has become relevant after the adoption of Council Framework Decision on

the European arrest warrant and the surrender procedures between

Member States, cf. the Institute’s reply of 20 January 2003 to the

consultation papers. It is also underlined several times in the Green Paper

that human rights protection should be applied in a uniform way.

The Institute finds reason to comment on a few sections of the Green Paper,

though. The Institute has noted that the Green Paper points out that it “is

not designed to ensure that Member States comply with the ECHR but

rather to make sure that those rights identified here are applied in a more

consistent and uniform manner throughout the European Union”, cf. para.

3.1. It is also pointed out that “[d]ifferences in the way human rights are

translated into practice in national procedural rules do no necessarily

disclose violations of the ECHR”, cf. para. 1.7. The Green Paper also points

out several times the need to ensure “mutual trust” and considers the

setting of common minimum standards as a suitable means for enhancing

mutual trust.

The Institute finds that common standards and mutual trust constitute the

logical counterweight of other measures of mutual recognition, and that

crucial differences in the criminal procedural protection may function as a

barrier to the enhancement of mutual trust.

Moreover, the Institute naturally agrees that different levels of protection

of the various Member States do not necessarily disclose any violations of

human rights conventions, but there is reason to point out that they might

do so. Several current Member States have several times been found to have

violated Article 6 of the ECHR, and the same applies to several new

Member States. Therefore the Institute finds that trust between Member

States cannot be recognised as an indispensable basis for cooperation, but

rather as an aim. Scepticism about the standard of the criminal procedure

in other Member States may, depending on circumstances, be essential to

the human rights protection.

The fact that the aim of the Green Paper is mutual recognition rather than

human rights protection involves in itself a risk, according to the Institute,

that the common minimum standards will be determined on the basis of

the ‘lowest common denominator’, leading to impaired protection in

Denmark and other Member States. The Institute finds such potential

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development problematic in itself and, depending on circumstances, there

is a risk that it might allow for more human rights violations in criminal

procedures in Member States. For this reason the Institute finds that great

importance should be attached to this risk in future discussions concerning

the setting of common minimum standards.

References:

Consultation paper of 24 June 2003 from the Ministry of Justice concerning the Commission

Green Paper on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings

throughout the European Union.

Reply of the Institute of 4 August 2003, prepared by Ida Elisabeth Koch.

The Green Paper had not been finally adopted at the close of the editorial work.

2. Danish court decisions

Eastern and Western High Courts:

Danish Weekly Law Reports 2003, p. 1136, Eastern High Court

(U.2003.1136Ø)

Matrimonial proceedings could not be instituted in Denmark due to the

spouse’s diplomatic immunity.

M, who was a Danish national living in Denmark with two children of his

marriage, instituted legal separation proceedings against H, who was a

foreign national and diplomat with an embassy of her home country. The

embassy was situated in Stockholm, but was also responsible for affairs in

Denmark. H’s immunity extended to Denmark according to the Vienna

Convention on Diplomatic Relations and had not been withdrawn by her

home country. Due to H’s exterritorial status and the resulting immunity

from jurisdiction in respect of civil proceedings, H could not be summoned

in matrimonial proceedings in Denmark. It was found that Articles 6 and 8

of the ECHR could not lead to any different result. The High Court therefore

affirmed the District Court’s dismissal of the proceedings.

Danish Weekly Law Reports 2003, p. 787, Eastern High Court

(U.2003.787Ø)

Section 11(2) of the Labour Court Act does not warrant freedom of choice

between industrial arbitration and the ordinary courts of law.

Acting for B, A, which is the Union of Salaried Architects (Ansatte

Arkitekters Råd), instituted proceedings against K, the Royal Academy of

Fine Arts’ School of Architecture (Kunstakademiets Arkitektskole),

claiming payment of DKK 500,000. The claim comprised both financial


compensation for unlawful termination by setting aside material

procedural rules and the principle of objectivity under the Public

Administration Act as well as compensation for unfair dismissal. A

requested that the case be referred to the High Court in pursuance of section

226(1)(i), (ii) and (iv) of the Administration of Justice Act. K claimed

dismissal of the part of the plaintiff’s claim that concerned compensation

for unfair dismissal, referring to a provision of the collective agreement

between the Ministry of Finance and the Danish Confederation of

Professional Associations (Akademikernes Centralorganisation),

according to which such disputes are to be decided by arbitration. The

conditions for referring the case to the High Court were found not to have

been met, and A’s request to this effect was not allowed. The time limit

according to the collective agreement for commencing arbitration

proceedings had been exceeded, and K did not want to disregard that fact.

A’s decision not to commence arbitration proceedings was made because B

found that proceedings concerning the dismissal would be conducted in an

unacceptable way by being heard by two different forums, the industrial

arbitration system (objectivity of the substance of the dismissal) and the

ordinary courts of law (the formal conditions governing the validity of the

dismissal). The issue of compensation for unjustified dismissal could not

be decided by the ordinary courts, cf. section 11(2) of the Labour Court Act,

since the issue was to be decided by arbitration according to the collective

agreement. Section 11(2) of the Labour Court Act was not intended to offer

freedom of choice between arbitration and the ordinary courts in a situation

like the present one, and the decision was found not to be contrary to Article

6(1) of the ECHR. K’s claim for partial dismissal was therefore allowed.

Danish Weekly Law Reports 2003, p. 779, Eastern High Court

(U.2003.779Ø)

Court fee for case concerning acceptance of acquisition offer under the Rent

Act.

In connection with appeal proceedings – in which A, a cooperative housing

society, claimed that the current owners of the residential property should

be ordered to recognise that, in accordance with the rules on pre-emptive

rights in Part XVI of the Rent Act, A had accepted an offer for acquisition

of the property – J, the court registrar of the Eastern High Court, had stated

that the case concerned the dispute as to whether a final, conclusive and

binding agreement on transfer of real property had been concluded. For

this reason the case was found to be subject to section 1(1) of the Court Fees

Act. Based on the information provided in the case, J fixed the amount at

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dispute in the appeal case at DKK 450m, and the court fee was computed

at a little more than DKK 9m. The High Court affirmed J’s computation of

the court fee and said that it could not be determined on the current basis

whether the amount of the court fee was so large that in reality A was

prevented from a hearing of the case before the High Court, and that this

actually constituted violation of Article 6 of the ECHR. Such violation could

be prevented if free legal aid was granted.

Danish Weekly Law Reports 2002, p. 2780, Eastern High Court

(U.2002.2780Ø)

Assignment of counsel made conditional under section 336c(3) of the

Administration of Justice Act.

Upon request from the detainee A, who was provisionally charged with

manslaughter, the District Court of Middelfart assigned attorney B as

counsel for A. B was assigned on the terms applicable to local law

practitioners, cf. section 741 of the Administration of Justice Act, compared

with section 336c(3). A had asked for various lawyers, and finally he asked

for attorney B. The High Court found no basis for overruling the

assessment made by the District Court and held that Article 6 of the ECHR

could not lead to any other decision.

Danish Weekly Law Reports 2002, p. 2729, Western High Court

(U.2002.2729V)

Car owner not obligated to disclose who used the car when speed limit was

exceeded, as it could not be ruled out that the offender was the owner

himself.

T had been charged with violation of section 65 of the Road Traffic Act,

having failed to disclose the identity of the person who used his vehicle

when it was caught for exceeding speed limits, on which occasion photos

of the driver had been taken. The High Court found that it could not be

ruled out that T was the driver of the car at the relevant time. Based on this

assessment of the evidence, it could not be established that T was subject

to a duty to disclose the identity of the car driver, cf. Article 6(1) of the

ECHR. T was therefore acquitted.

Supreme Court:

Danish Weekly Law Reports 2003, p. 1469, Supreme Court (U.2003.1469H)

Nine years’ imprisonment for sale of 4.8 kg of heroine and cocaine,

attempted sale of drugs, and attempted robbery.


T, who had been sentenced to imprisonment for three years and eight

months in Norway in 1994 for a drug-related crime, was found guilty by a

jury of having on eight occasions handed over about 4.8 kg of heroin or

cocaine, of having attempted to hand over drugs, and of having attempted

to induce another person to commit bank robbery with a sawn off shotgun.

The jury sentenced him to prison for nine years. T appealed the decision to

the Supreme Court, claiming remission of the case for retrial by the jury on

the grounds that a procedural error had been committed when the High

Court permitted the prosecutor to read out loud and use as evidence the

witness statements given in court prior to the trial by two other persons

involved in the case. T stated in this connection that these persons had

given evidence against a promise that they would not be charged with the

offences about which they gave evidence. T also submitted that the High

Court had committed a procedural error when asking an alternative main

question to the jurors. The Supreme Court said that the conditions laid

down by the Administration of Justice Act for permitting the prosecutor to

read out loud the witness statements had been satisfied and were not

contrary to Article 6 of the ECHR, and that, on the basis of an overall

assessment of the conditions under which the evidence was given, there

was no basis for criticising that the witness statements had been read out

loud and used as evidence in the case. (1) Since procedural errors had not

otherwise been committed, (2) the Supreme Court did not allow T’s claim

for remission, but upheld the High Court judgment.

Danish Weekly Law Reports 2003, p. 1328, Supreme Court (U.2003.1328H)

The right of representatives of the Danish Competition Authority

(Konkurrencestyrelsen) to make a surprise inspection (dawn raid) of a

company in accordance with a decision made by the European

Commission to this effect.

In August 2001 the European Commission, E, decided in pursuance of the

powers provided specifically in a Commission regulation to carry out an

inspection of V, a Danish company, and the subsidiaries of V. The reason

given was the assumption that V had been involved in the establishment

of unlawful cartel agreements. According to the resolution, K, the Danish

Competition Authority, requested the District Court to issue an order

permitting representatives of K and E to make a surprise inspection of V.

On the same day the District Court issued an order permitting the dawn

raid, which was launched immediately. V appealed the order to the High

Court, which upheld the order, whereupon the case was brought before the

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56

Supreme Court. In support of the appeal, V submitted that the District

Court order had, in all essentials, merely authorised E’s decision without

reviewing whether the coercive measure requested was too extensive

and/or contrary to Danish law. It was a coercive measure that had to follow

the relevant national rules, and therefore V ought to have been allowed the

rights of a suspect, the consequence being that V would not have been

obliged to assist actively in the inspection. In this respect V relied on Article

6 of the ECHR and section 752 of the Administration of Justice Act. The

Supreme Court said that, in connection with a hearing by the competent

national judicial authority, it is required in all essentials that the court shall

make sure that there is sufficiently substantial presumptive evidence

supporting a suspicion that the relevant company has acted contrary to

competition law. As ruled by the European Court of Justice in several

judgments, a company cannot refuse to provide information, even if such

information could be used to prove a violation, but a company cannot be

compelled to admit any unlawful acts that it is incumbent on E to prove.

The Supreme Court found that there was no reason to assume that the

balancing made by the District Court between the powers of the European

Commission and the right against self-incrimination was contrary to

national constitutional provisions. Since no other concrete circumstances

were relied on in order to justify that the District Court order was unlawful

in relation to V, the Supreme Court upheld the High Court order.

Danish Weekly Law Reports 2002, p. 2060, Supreme Court (U.2002.2060H)

Case concerning salary increase that had been dismissed by industrial

arbitration and by the Labour Court could be heard by the ordinary courts

of law.

F, who was employed as a sales assistant of S, a department store, claimed

remuneration from S as an area assistant because she found that her powers

and responsibility corresponded to that of an area assistant. The national

collective agreement, by which F was covered by virtue of her membership

of the trade union O, stated among other things that the individual

employee should negotiate his or her salary directly with the employer.

When S refused the claim from F, O requested that the dispute be settled by

industrial arbitration, but the tribunal refused the matter stating that it was

not competent to hear it, with S objecting. O then brought the matter before

the Labour Court, which did not consider itself competent to decide the

dispute either. Then O brought the dispute before the Maritime and

Commercial Court, which found for S’s claim for dismissal of the case. The

Supreme Court said that section 11(2) of the Labour Court Act, as seen in


the light of Article 6(1) of the ECHR, must be interpreted to mean that an

employee is allowed to institute proceedings before the ordinary courts of

law concerning claims for unpaid salary, not only when the relevant trade

union has declared that it intends not to institute industrial arbitration in

respect of the claim, but also when the union – as was the case in this

situation – has generally barred itself from demanding industrial

arbitration. The Supreme Court therefore found for O’s claim for remission

to the Maritime and Commercial Court for adjudication of the case on its

merits.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the right to a fair trial have been published in the

period under review.

4. Judgments of the European Court of Human Rights

Cases decided:

Pedersen and Baadsgaard v. Denmark, application No. 49017/99, judgment of

19 June 2003.

Decision: No violation of Articles 10 and 6(1) of the ECHR.

The judgment is summarised in the section on Freedom of Expression.

Cases declared inadmissible:

Ohlen v. Denmark, application No. 63214/00.

Articles 6(1) and 6(2), declared inadmissible on 6 March 2003.

The applicant claimed that the criminal proceedings against him before the

District Court and the tax authorities were contrary to his right to a fair trial.

The Court found that a complaint under Article 6 must be seen in the light

of the proceedings as a whole. Given the fact that the criminal proceedings

were still pending before the High Court, the complaint was rejected by the

European Court of Human Rights pursuant to Article 35(1) and (4).

Moreover, the Court found that Article 6 was not applicable to the tax

assessment proceedings because these proceedings did not involve a

determination of the applicant’s civil rights and obligations. Therefore the

Court concluded that the application fell outside the scope of Article 6 and

was thus manifestly ill-founded within the meaning of Article 35(3).

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58

Pedersen v. Denmark, application No. 68693/01.

Article 6(1), declared inadmissible on 12 June 2003.

The applicants complained of breach of Article 6 because the Supreme

Court had refused to refer the case to the European Court of Justice for a

preliminary ruling.

The Court found that an absolute right to have a case referred to the

European Court of Justice cannot be derived from Article 6. Nevertheless,

in certain circumstances, such a refusal by a national court might infringe

the right to a fair trial, particularly when it appears to be arbitrary. In the

present case, the Court found no arbitrariness in the Supreme Court’s

decision, which could lead to the conclusion that the refusal to refer the case

to the European Court of Justice infringed the applicants’ rights as

guaranteed by Article 6. The Court rejected this part of the application as

being manifestly ill-founded within the meaning of Article 35(3).

The applicants also complained that the Supreme Court’s decision was not

reasoned and did not deal with several important points made by the

defence.

The Court said that Article 6 obliges the national courts to give reasons for

their judgments, but cannot be understood as requiring a detailed answer

to every argument.

¨

The Court found no substantiation in the applicants’ allegation that the

Supreme Court’s decision was not reasoned or that the court had failed to

deal with important points made by the defence.

The application was rejected as being manifestly ill-founded within the

meaning of Article 35(3).

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The Human Rights Committee (HRC).

Opinions:

Human Rights Committee

The Committee has not examined Denmark in the period under review.


Concrete cases:

Human Rights Committee

No complaints against Denmark for violation of the right to a fair trial have

been considered in the period under review.

6. Government initiatives

The Ministry of Justice received the Report from the Legal Rights

Commission (Retssikkerhedskommissionen) in June 2003. The Legal

Rights Commission was set up in 2002 and entrusted with the task of

making proposals for amendments enhancing citizens’ legal rights. To this

end the Commission has been drafting rules that stipulate the guidelines

for the conduct of the authorities in connection with control and

supervision.

The Report of the Legal Rights Commission is available in Danish at

http://www.jm.dk/image.asp?page=image&objno=69983

7. Miscellaneous

On 31 October 2002 the Russian authorities requested that Akhmed Sakajev

be extradited for prosecution in Russia where he was charged with

violation of the Russian Criminal Code, having from 1996 to 1999

participated in forming illegal armed units, armed insurrection and

homicide. In accordance with a Danish reservation to the European

Convention on Extradition of 13 December 1957, the Danish Ministry of

Justice requested the Russian authorities to procure evidence on the counts

listed in the extradition warrant. The Ministry of Justice found that Sakajev

could not be extradited on the existing basis because the evidence produced

for the alleged offences was not deemed sufficient.

No Punishment without Law

Convention provisions: Article 7 of the ECHR, Articles 2-4 of Protocol No.

7 and Article 15 of the ICCPR.

Articles 49 and 50 of the Charter of Fundamental Rights of the European

Union.

Article 7 of the ECHR

1. No one shall be held guilty of any criminal offence on account of any act or

omission which did not constitute a criminal offence under national or

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60

international law at the time when it was committed. Nor shall a heavier penalty

be imposed than the one that was applicable at the time the criminal offence was

committed.

2. This Article shall not prejudice the trial and punishment of any person for any

act or omission which, at the time when it was committed, was criminal according

to the general principles of law recognised by civilised nations.

1. Bills

Title:

Proposed Council Framework Decision concerning the application of the

ne bis in idem principle (the principle concerning the negative impact of

decisions in criminal matters)

Background:

Since the proposal was submitted unilaterally by the Greek Presidency in

February 2003, the Danish Institute for Human Rights assumes that the

proposal must be negotiated before it is submitted as a final proposal. As it

is assumed that the process is still in its initial phase, the Institute will

restrict its comments to some preliminary comments of a fundamental

nature about the human rights aspects of the implementation of the ne bis

in idem principle in the Member States.

Human rights:

The ne bis in idem principle, according to which no one should be prosecuted

or tried twice for the same criminal offence, is a human rights principle laid

down in Article 4 of Protocol No. 7 to the European Convention on Human

Rights.

The fundamental nature of this principle is emphasised by the provision of

paragraph 3, according to which the negative authority cannot be

derogated from in time of war or other public emergency threatening the

life of the nation in pursuance of Article 15 of the ECHR. The right to

derogate from the rights and freedoms of the ECHR to the extent strictly

required by special circumstances has thereby been barred as regards the

ne bis in idem principle.

The ne bis in idem principle is also reflected in Article 14(7) of the

International Covenant on Civil and Political Rights.


Assessment by the Institute:

In the opinion of the Institute, the fact that Protocol No. 7 has been made

absolute is relevant to the assessment of compatibility of Article 4 of the

proposed Framework Decision with the European Convention on Human

Rights.

The proposed Framework Decision opens up for the possibility for Member

States to derogate from the ne bis in idem principle of Article 2 by declaration

to the Council and the Commission if the act prosecuted in another Member

State constitutes a criminal offence against the security or other essential

interests.

Such exception is not compatible with the absoluteness attributed to the ne

bis in idem principle in human rights law in the Institute’s point of view.

References:

Proposed Council Framework Decision concerning the application of the ne bis in idem

principle, distributed as an enclosure to the consultation papers of 16 July 2003 from the

Ministry of Justice.

Reply of the Institute of 28 July 2003, prepared by Birgitte Kofod Olsen.

The Framework Decision had not been finally adopted at the end of the editorial work.

2. Danish court decisions

Eastern and Western High Courts:

Danish Weekly Law Reports 2002, p. 2362, Eastern High Court

(U.2002.2362Ø)

Two years’ imprisonment for trafficking of 200 grams of amphetamine to

the Faroe Islands.

T, a 26-year-old man with a clean criminal record was found guilty of

violation of section 191 of the Criminal Code having together with a cooffender

trafficked 200 grams of amphetamine to the Faroe Islands and

resold 55 grams of it. T had also purchased 1 gram of cocaine, 5 ecstasy

tablets and 12-17 grams of hashish, and 230 grams of hashish intended for

resale. Finally T was found guilty of violation of section 164(1) of the

Criminal Code having given false evidence in connection with the

proceedings, thereby causing detention of an innocent person for 10 days.

The District Court of the Faroe Islands sentenced T to imprisonment for two

years. The High Court upheld the decision on the length of the sentence,

which was found not to constitute a violation of Article 7(1), 2 nd sentence,

of the ECHR.

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62

Supreme Court:

No judgments concerning the right to no punishment without law have

been published in the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the right to no punishment without law have been

published in the period under review.

4. Judgments of the European Court of Human Rights

No judgments or decisions concerning the right to no punishment without

law have been published with Denmark as a party to the case in the period

under review.

5. Opinions of and concrete cases before the Committees

Relevant Committees:

Human Rights Committee (HRC).

Opinions:

Human Rights Committee

The Committee has not examined Denmark in the period under review.

Concrete cases:

Human Rights Committee

No complaints against Denmark for violation of the right to no punishment

without law have been considered in the period under review.

6. Government initiatives

No relevant Government initiatives have been launched in the period

under review.

Right to Respect for Family and Private Life, Home and

Correspondence

Convention provisions: Article 8 of the ECHR and Article 17 of the ICCPR.

Articles 7, 8 and 9 of the Charter of Fundamental Rights of the European

Union.

Section 72 of the Danish Constitution.


Article 8 of the ECHR

1. Everyone has the right to respect for his private and family life, his home and his

correspondence.

2. There shall be no interference by a public authority with the exercise of this right

except such as is in accordance with the law and is necessary in a democratic society

in the interests of national security, public safety or the economic well-being of the

country, for the prevention of disorder or crime, for the protection of health or

morals, or for the protection of the rights and freedoms of others.

Section 72 of the Danish Constitution

The dwelling shall be inviolable. House search, seizure, and examination of letters

and other papers, or any breach of the secrecy that shall be observed in postal,

telegraph, and telephone matters, shall not take place except under a judicial order,

unless particular exception is warranted by statute.

1. Bills

Title:

Opinion concerning Bill amending the Aliens Act (amendment of rules

on requirement of ties at reunification of spouses, etc.)

Background:

By e-mail of 25 September 2003, the Danish Institute for Human Rights was

requested by the Ministry of Refugee, Immigration and Integration Affairs

to comment on the Bill amending the Aliens Act (amendment of the rules

on requirement of ties at reunification of spouses, etc.).

According to section 1 of the Bill, two legislative amendments are

proposed: (1) Persons who have been Danish nationals for 28 years need

not satisfy the requirement of ties laid down in section 9(7) of the Aliens

Act. (2) The wording of section 9(8) will be amended from “at both parties’

desire” to “at both parties’ own desire”.

According to the explanatory notes of the Bill, persons who grew up in

Denmark and have had at least 28 years of lawful – substantially

continuous – residence in Denmark will also be exempt from the

requirement of ties.

It will be assumed that a marriage is not contracted at the parties’ own

desire when it is a marriage between close relatives or otherwise closely

related persons.

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Previous reunification of spouses in the spouses’ close families are also an

indication that the marriage was not contracted at the parties’ own desire.

Human rights:

The Bill gives rise to concern in relation to the individual’s right to selfdetermination

and right to family life and to the fundamental human rights

principles of transparency of the legal basis and predictability of the

application of the legal basis. The Bill also gives rise to concern in relation

to the prohibition of racial discrimination.

The following provisions are of relevance to a human rights assessment:

Articles 8, 12 and 14 of the ECHR, Articles 1 and 5 of the International

Convention on the Elimination of All Forms of Racial Discrimination

(ICERD) and Article 1(1) of the 1962 International Convention on Consent

to Marriage, Minimum Age for Marriage and Registration of Marriages.

Assessment by the Institute:

It is positive that the Bill plans to reintroduce in part nationals’ legal claim

for spousal reunification, and its is also positive that the Government is

taking initiatives to combat forced marriages, cf. Articles 8 and 12 of the

ECHR and other conventions.

Nevertheless, after the adoption of this Bill, Danish nationals will still

experience restrictions of their right to stay in Denmark if they are married

to a foreigner. The requirement of ties will still apply to all Danish nationals

under 28 years and to persons who have not stayed lawfully and

continuously for at least 28 years in Denmark. The Institute finds that it has

not been clarified whether the European Court of Human Rights will

permit restrictions of nationals’ right to reunification with their spouses, cf.

Article 8 of the ECHR.

After the enactment of this Bill, refugees will still be deprived of their right

to reunification with a spouse from their country of origin if such marriage

is contracted after they enter Denmark. In order to avoid making the

protection offered by Articles 8 and 12 of the ECHR empty, the Institute

assesses that the authorities ought to take into consideration the actual

possibilities of the individual refugee to found a family with his or her

spouse in a country other than Denmark.

The requirement of 28 years of Danish nationality implies differential

treatment between nationals who acquired nationality at birth and


nationals who acquired nationality later. Such differential treatment is

unusual in Danish law and in principle inadvisable, according to the

Institute.

The rule stipulating that previous instances of reunification with spouses

in the family could indicate that the marriage has been contracted against

the couple’s own will is a problematic rule, the Institute finds, because the

consequence is that a relatively comprehensive group of persons are left

worse off according to the rules on spousal reunification due to a conduct

that is entirely lawful (as it concerns more than unlawful forced marriages)

and which is otherwise entirely outside their control (whom their close

relatives have married).

The rule that marriages between closely related persons are deemed forced

marriages is problematic according to the Institute because it means that a

relatively comprehensive group of persons are left worse off under the

rules on spousal reunification due to a conduct that is otherwise entirely

lawful. It is problematic to introduce a restriction of the right to marry

closely related persons when one of the parties is a foreigner.

Following the adoption of this Bill, the branch of jurisprudence governing

spousal reunification will be characterised by even more nontransparency

and unpredictability, because the authorities first have to assess whether a

person is to be exempt from the requirement of ties pursuant to the 28-yearrule,

and then they have to conduct a complex estimate of whether the

couple has sufficient ties with Denmark. In the event of a marriage between

closely related persons, the authorities have to assess whether the couple

can prove that the marriage reflects their own desires, and finally any

reunification of spouses among their close relatives must be assessed as it

might be an indication that the marriage does not reflect their own desires.

Finally, the Institute deems it likely that the European Court of Human

Rights will find that the present requirement of ties at reunification of

spouses, compared with the rules of the new Bill, expresses nonobjective

and disproportionate differential treatment between Danish nationals

based on their ethnic origin, and that such differential treatment is contrary

to Article 14 of the ECHR, compared with Articles 8 and 12, and Article 1

of the ICERD, compared with Article 5(d)(iv).

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66

References:

Bill No. L 6, introduced in writing on 8 October 2003: Supplement A, column 63.

Opinion concerning Bill amending the Aliens Act (amendment of rules on requirement of ties

at reunification of spouses, etc.), distributed as an enclosure to the consultation papers of 25

September 2003 from the Ministry of Refugee, Immigration and Integration Affairs.

Reply of the Institute of 5 October 2003, prepared by Maria Ventegodt Liisberg.

The consideration of the Bill in Parliament had not been completed at the close of the editorial

work.

Title:

Draft Bill on Patient Safety in the Health Sector

Background:

The Bill is intended to improve patient safety in the health sector by

gathering information on errors and unintentional events affecting patient

safety. The Bill introduces a reporting system intended to contribute to

preventive action from the health authorities. This system will be based on

reports from health workers as well as analysis and use of these reports in

the treatment of patients.

Human rights:

Article 6 of the European Convention for the Protection of Individuals with

regard to Automatic Processing of Personal Data, and Article 6 of the

ECHR.

Assessment by the Institute:

The Institute finds reason to point out that the provision of section 8 of the

Bill on reporting of unintentional events, which can be referred to specific

persons without their consent, gives rise to concern, not only relative to

sections 26 and 27 of the Act on Patient Rights and section 7 of the Act on

Processing of Personal Data, but also relative to Article 6 of the European

Convention for the Protection of Individuals with regard to Automatic

Processing of Personal Data.

The facts that consent is required under the current legislation for passing

on health data, and that passing on is permitted only to the extent that it is

deemed to be of significant importance or necessary for the authorities to

complete their tasks, are based on the conception that regard for the

protection of the individual is crucial.

When the legislator chooses to disregard the protection of the individual

inherent in the requirement of consent, such choice should, according to the


Institute, be accompanied by a reasoning which clearly shows and proves

partly the need for reporting without procuring consent, partly the positive

effect it will have on the reporting to the clinical databases and eventually

on the quality of the treatment offered. The Institute hence finds that it has

not been proved that the intervention in the citizen’s right to protection of

his or her private life, reflected by disregard for the requirement of consent,

is proportionate, according to a human rights assessment, to the

improvements of the reporting basis given as the objective, cf. para. 5 on

page 12 of the explanatory notes.

Moreover, the Institute finds occasion to mention the risk of selfincrimination

that may result when information reported on unintentional

events can be used in connection with subsequent criticism of or legal

actions against reporting health workers.

References:

Act No. 429 of 10 June 2003.

Entry into force: 1 January 2004.

Bill No. L 224, introduced in writing on 30 April 2003: Supplement A, column 6981.

The Bill as adopted: Supplement C, column 829.

Draft Bill on Patient Safety in the Health Sector, distributed as an enclosure to the consultation

papers of 5 March 2003 from the Ministry of the Interior and Health.

Reply of the Institute of 3 April 2003, prepared by Birgitte Kofod Olsen.

Title:

Draft Bill amending the Criminal Code, the Administration of Justice

Act and the Marketing Practices Act (cybercrime)

Background:

The Bill is based on Report No. 1417/2002 from the Committee on

Economic and Computer Crime (Udvalget om økonomisk kriminalitet og

datakriminalitet), and it also implements the statutory amendments

required for Denmark’s ratification of the European Convention on

Cybercrime. Moreover, the Bill also comprises amendments necessary to

enable Denmark to adopt the Council Framework Decision on attacks

against information systems.

Human rights:

The Institute finds occasion to express doubt as to whether the proposed

amendment of section 786 of the Administration of Justice Act is compatible

with Article 8 of the ECHR. According to the amendment bill, the police

may order telecommunications providers to store electronic data for up to

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68

90 days in all cases where such electronic evidence may be essential without

offering any procedural guarantees.

It should be noted that there are no judgments from the European Court of

Human Rights where the Court has had the opportunity to balance the

private life protection of users’ electronic data against needs following from

police investigation.

Assessment by the Institute:

The Institute deems it to be doubtful whether the human rights

requirement of necessity in relation to interference with the private life

(Article 8 of the ECHR) has been satisfied. The police’s right to discovery is

governed by the Administration of Justice Act which contains provisions

on discovery orders (section 806), by which the police can safeguard its

access to electronic evidence. By the enactment of the anti-terrorism

package and the duty to log traffic data included in the package (section

786(4) of the Administration of Justice Act), the possibilities for the police

to investigate Internet-related offences have been improved. The log duty

safeguards the presence of users’ electronic traffic data with the

telecommunications providers for a year and the possibility of the police to

gain access to such data by obtaining a court order. Already today the

Administration of Justice Act safeguards police access to electronic

evidence, provided that the provisions on a court order have been complied

with.

It is deemed to be non-proportional to give the police a separate possibility

of securing evidence in such a way that the contents of a user’s electronic

communication must be identified and recorded for 90 days solely as a

potential investigative measure, without satisfying the procedural

guarantees laid down in the Administration of Justice Act. The act of

securing will involve identification, freezing and maybe copying the

contents of a user’s electronic communication with telecommunications

providers, which interferes with such user’s right to private life no matter

whether or not the data is subsequently supplied to the police. Such

interference with the individual’s private life, without providing any

procedural guarantees, is deemed not to be a proportional means of

fulfilling the aim of combating cybercrime.

The Institute finds that the proposed amendment of the Administration of

Justice Act concerning the right of the police to secure electronic data

should be subject to the general procedural guarantees as are offered by the


Administration of Justice Act at interference with the secrecy of

communication and discovery orders, i.e. the requirement of a court order.

Note:

Denmark signed the European Convention on Cybercrime on 22 April 2003. It is expected that

the statutory amendments required for Denmark’s ratification of the European Convention

will be enacted by a bill introduced in November 2003.

References:

Draft Bill amending the Criminal Code, the Administration of Justice Act and the Marketing

Practices Act (cybercrime), distributed as an enclosure to the consultation papers of 20

December 2002 from the Ministry of Justice.

Reply of the Institute of 5 February 2003, prepared by Rikke Frank Jørgensen.

Title:

Bill amending the Act on Denmark’s Accession to the Schengen

Convention

Background:

The Bill is intended to introduce the requisite amendments of the Act on

Denmark’s Accession to the Schengen Convention to enable Denmark to

implement a proposed Council Directive on the gradual abolition of checks

at common borders.

Human rights:

Article 8 of the ECHR.

Assessment by the Institute:

The Institute finds reason to emphasise that the use of cross-border

surveillance and pursuit according to Articles 40 and 41 of the Schengen

Convention requires a concrete assessment of the activity as a potential

interference with the private life of the individuals kept under surveillance

or pursued. By actual use of these provisions, an assessment must be made

as to whether the measure is necessary and proportional, cf. Article 8 of the

ECHR.

References:

Act No. 227 of 2 April 2003.

Entry into force: 4 April 2003.

Bill No. L 99, introduced in writing on 28 November 2002: Supplement A, column 2201.

The Bill as adopted: Supplement C, column 282.

Bill amending the Act on Denmark’s Accession to the Schengen Convention, distributed as an

enclosure to the consultation papers of 18 October 2002 from the Ministry of Justice.

Reply of the Danish Centre for Human Rights of 24 October 2002, prepared by Birgitte Kofod

Olsen.

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Title:

Proposed Council Framework Decision on attacks against information

systems

Background:

The proposed Council Framework Decision on attacks against information

systems is intended to enhance judicial cooperation on offences relating to

attacks against information systems by introducing effective tools and

procedures, such as actions aimed at IT infrastructures for the purpose of

destroying or disrupting the data of computers or networks.

Assessment by the Institute:

The Institute is satisfied that the Framework Decision takes into account

the fundamental rights and principles of the EU Charter of Fundamental

Rights, in particular Chapters II and VI.

The Institute would call upon the Member States to insert a reference to the

Directive of the European Parliament and of the Council on the protection

of individuals with regard to the processing of personal data and on the

free movement of such data (Directive 95/46/EC of 24 October 1995) in

recital 9 of the Framework Decision, as this Directive offers better

protection than the Council of Europe Convention of 28 January 1981 for

the Protection of Individuals with regard to Automatic Processing of

Personal Data. It should therefore appear from the Framework Decision

that personal data processed with reference to the Framework Decision will

be protected in accordance with the Directive on the protection of

individuals with regard to the processing of personal data and on the free

movement of such data.

References:

Proposed Council Framework Decision on attacks against information systems, distributed

as an enclosure to the consultation papers of 11 November 2002 from the Ministry of Justice.

Reply of the Danish Centre for Human Rights of 18 December 2002, prepared by Rikke Frank

Jørgensen.

Not adopted finally as adoption awaits repeal of a Danish parliamentary proviso.

Title:

Proposed Council Decision on the investigation and prosecution of war

crimes and crimes against humanity, etc.


Background:

The objective of the Council Decision is to enhance the national and

international cooperation between immigration authorities, police forces

and judicial authorities for the purpose of identifying and prosecuting the

individuals who have committed or participated in war crimes and crimes

against humanity. If a person who has applied for a residence permit is

suspected of involvement in war crimes, the authority processing the

application shall notify the law enforcement authorities thereof.

Human rights:

Article 8 of the ECHR.

Assessment by the Institute:

The Institute considers it necessary to emphasise that any disclosure of

personal data under section 45c of the Aliens Act must be subject, not only

to section 8 of the Act on Processing of Personal Data, and maybe also to

section 7 on sensitive data, but also to the assumption that disclosure of

personal data must be deemed interference with the human rights

protection of private life, cf. Article 8 of the ECHR. A specific assessment

therefore has to be made in each case as to whether the actual interference

is proportional to the aim of the measure.

Moreover, the Institute finds that the implementation of the Decision as

proposed in the memorandum gives rise to concern because the legal basis

for disclosing personal data to foreign authorities is not stipulated

expressly in Danish legislation, but is implied by the rules on

confidentiality compared with the Act on Processing of Personal Data.

Under human rights standards, the statutory authority authorising

interference with a human right must be clear and precise and enable the

individual to predict the consequences of the application of such rule. The

Institute finds that this requirement has not been satisfied by the scheme

described in the memorandum from the Ministry.

References:

Opinion concerning the proposed Council Decision on the investigation and prosecution of

war crimes and crimes against humanity, etc., distributed as an enclosure to the consultation

papers of 26 November 2002 from the Ministry of Justice.

Reply of the Danish Centre for Human Rights of 20 December 2002, prepared by Birgitte Kofod

Olsen.

Council Decision 2003/335/JHA on the investigation and prosecution of genocide, crimes

against humanity and war crimes was adopted on 8 May 2003.

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72

2. Danish court decisions

Eastern and Western High Courts:

No final judgments have been published concerning the right to respect for

family and private life, home and correspondence in the period under

review.

Supreme Court:

Danish Weekly Law Reports 2003, p. 56, Supreme Court (U.2003.56H)

Expulsion as a consequence of a four-month prison sentence for violence.

T1 was sentenced to imprisonment for four months by the District Court

for violation of section 245(1) of the Criminal Code, having at a restaurant

with a partly broken bottle hit another guest, T2, in his head, which caused

arterial bleeding, a long, deep lesion at his left ear and a long lesion down

to the bone above his left ear. T1, who was a Sri Lankan national and had

resided in Denmark for almost seven years, was also expelled for five years.

The High Court upheld the judgment, which was brought before the

Supreme Court with a claim for reversal of the expulsion order. The

Supreme Court upheld the judgment. In its judgment the Supreme Court

attached importance to the facts that T1 had only obtained weak ties with

the Danish society, that he had no family in Denmark, and that he had

family in Sri Lanka, where he had lived until he came to Denmark at the

age of 41. Considering these circumstances, the Supreme Court affirmed

that none of the circumstances listed in section 26(1) of the Aliens Act,

compared with Article 8 of the ECHR, were conclusive arguments against

expulsion considering the relatively serious violence of which T1 had been

found guilty.

3. Opinions of the Parliamentary Ombudsman

No opinions have been published concerning the right to respect for family

and private life, home and correspondence in the period under review.

4. Judgments of the European Court of Human Rights

Cases declared inadmissible:

Madsen v. Denmark, application No. 58341/00.

Article 8 of the ECHR, declared inadmissible on 7 November 2002.


The Court found that the requirement of the Danish shipping company

DFDS that its employees should submit to random control measures by

means of providing a urine sample was necessary considering the safety of

passengers and crew members. Nothing indicated that the urine sampling

and the way it was carried out was disproportionate. The application was

therefore rejected as being manifestly ill-founded within the meaning of

Article 35(3).

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The Human Rights Committee (HRC).

Opinions:

Human Rights Committee

The Committee has not examined Denmark in the period under review.

Concrete cases:

Human Rights Committee

No complaints against Denmark for violation of the right to respect for

family and private life, home and correspondence have been considered in

the period under review.

6. Government initiatives

Working group on Future Visa Administration (Arbejdsgruppen om den

fremtidige visumadministration)

The report of the Working Group on Future Visa Administration was

circulated by the Ministry of Refugee, Immigration and Integration Affairs

in August 2003. In its report, the Working Group proposes a restructuring

of the country categories, a new option for certain groups of foreigners who

were not previously eligible for a visa so that they can now obtain a visa

against security in the amount of DKK 50,000, and introduction of

tightened inspection of visas granted against security. The present country

categories are, according to practice, determined by the degree to which

nationals of the relevant countries usually apply for asylum, family

reunification or other residence permits for Denmark.

Report of the Legal Rights Commission (Retssikkerhedskommissionen)

The Minister for Justice received the Report of the Legal Rights

Commission in June 2003, including regulations stipulating the guidelines

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Freedom of Religion

74

for the conduct of the authorities in connection with control and

supervision when they gain access to private homes and companies.

The Report of the Legal Rights Commission is available in Danish at

http://www.jm.dk/image.asp?page=image&objno=69983

Freedom of Religion

Convention provisions: Article 9 of the ECHR and Article 18 of the ICCPR.

Council Directive 2000/78/EC of 27 November 2000 establishing a general

framework for equal treatment in employment and occupation (the

Employment Directive).

Article 10 of the Charter of Fundamental Rights of the European Union.

Section 67 of the Danish Constitution.

Article 9 of the ECHR

1. Everyone has the right to freedom of thought, conscience and religion; this right

includes freedom to change his religion or belief and freedom, either alone or in

community with others and in public or private, to manifest his religion or belief,

in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such

limitations as are prescribed by law and are necessary in a democratic society in

the interests of public safety, for the protection of public order, health or morals, or

for the protection of the rights and freedoms of others.

Section 67 of the Danish Constitution

Citizens shall be at liberty to form congregations for the worship of God in a manner

according with their convictions, provided that nothing contrary to good morals

or public order shall be taught or done.

1. Bills

No bills concerning the freedom of religion have been introduced in the

period under review.

2. Danish court decisions

Eastern and Western High Courts:

No judgments concerning the freedom of religion have been published in

the period under review.


Supreme Court:

No judgments concerning the freedom of religion have been published in

the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the freedom of religion have been published in the

period under review.

4. Judgments of the European Court of Human Rights

No judgments or decisions concerning the freedom of religion have been

published with Denmark as a party to the case in the period under review.

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The Human Rights Committee (HRC).

Opinions:

Human Rights Committee

The Committee has not examined Denmark in the period under review.

Concrete cases:

Human Rights Committee

No complaints against Denmark for violation of the freedom of religion

have been considered in the period under review.

6. Government initiatives

No relevant Government initiatives have been launched in the period

under review.

Freedom of Expression and Information

Convention provisions: Article 10 of the ECHR and Article 19 of the ICCPR.

Article 11 of the Charter of Fundamental Rights of the European Union.

Section 77 of the Danish Constitution.

Article 10 of the ECHR

1. Everyone has the right to freedom of expression. This right shall include freedom

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to hold opinions and to receive and impart information and ideas without

interference by public authority and regardless of frontiers. This Article shall not

prevent States from requiring the licensing of broadcasting, television or cinema

enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities,

may be subject to such formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for the prevention of

disorder or crime, for the protection of health or morals, for the protection of the

reputation or rights of others, for preventing the disclosure of information received

in confidence, or for maintaining the authority and impartiality of the judiciary.

Section 77 of the Danish Constitution

Any person shall be at liberty to publish his ideas in print, in writing, and in speech,

subject to his being held responsible in a court of law. Censorship and other

preventive measures shall never again be introduced.

1. Bills

No bills concerning the right to freedom of expression and information

have been introduced in the period under review.

2. Danish court decisions

Eastern and Western High Courts:

Danish Weekly Law Reports 2003, p. 1411, Eastern High Court

(U.2003.1411Ø)

20 days imprisonment as an aggregate and combined punishment for

propaganda activities under section 266b(2), cf. subsection (1), of the

Criminal Code.

T, now 75 years old, stated in four television and radio broadcasts that

Muslims are generally criminals who will ruin the world civilisation and

come to Denmark only to exterminate and kill the Danes. Denmark must

be free of Muslims, and any Muslims in Denmark who do not leave the

country voluntarily must be captured and put into camps, put out to tender

and sold to those who would pay the most for them. Muhamedanism is a

global destruction movement that is contrary to good morals and public

order, and in the course of 40-50 years one female Muslim in Denmark will

grow to 80 Muslims in Denmark. T was found to have realised the actus reus


of section 266b(1) of the Criminal Code as this provision must be construed

in the light of Articles 10 and 17 of the ECHR. The statements were made

in widely distributed media and concerned a subject that T had regularly

made statements about for years. Considering the above, the High Court

found that the statements were related to activities of a certain systematic

and lasting nature intended to influence the public opinion. For this reason

T had also realised the actus reus of section 266b(2) of the Criminal Code.

The first offence was committed after the trial but before the District Court

judgment was pronounced in March 1998 in a case in which T was accused

and subsequently sentenced for violation of section 266b of the Criminal

Code. T was charged with the offence in April 1999, although it was not

mentioned in an indictment of 28 February 2000, but only in an indictment

of 7 September 2000. The other offences were committed after the High

Court had upheld the 1998 District Court judgment. Later the Supreme

Court upheld the High Court judgment stating that T was sentenced to 7

days’ suspended lenient imprisonment. See Danish Weekly Law Reports

2000, p. 2234, Supreme Court (U.2000.2234H). The High Court found that

T could not have a justified expectation that he would not be charged with

the first offence although it was not included in the original indictment. It

was therefore found that the charge had not been withdrawn. The

statements were not an attack against the political system, but statements

against Muslims, and therefore it did not constitute a political offence, cf.

section 687(2)(iii) of the Administration of Justice Act. T was sentenced to

20 days’ imprisonment as an aggregate and combined punishment in

pursuance of section 61(1) and (2) of the Criminal Code. Considering the

gravity of the statements and the fact that T had previously been punished

for a similar offence, the High Court found, irrespective of T’s age, that

there was no basis for suspending the punishment.

Supreme Court:

Danish Weekly Law Reports 2003, p. 624, Supreme Court (U.2003.624H)

Editor-in-chief sentenced to day fines and payment of DKK 100,000 as

compensation for libel.

On 24 October 1997 the High Court ordered that A should be taken into

custody because of strong grounds for suspecting that she was guilty of at

least six incidents of manslaughter or attempted manslaughter at the old

people’s home where she was employed. On 23 December 1997 A was

released by order of the Supreme Court stating that it did not find a strong

suspicion in any of the six incidents. The Prosecution maintained its

charges of manslaughter, and on 1 December 1998 the Medico-Legal

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78

Council (Retslægerådet) replied to a number of questions asked by the

prosecutor and A’s counsel. On 2 December 1998 the newspaper C splashed

the headline “According to the Medico-Legal Council: POLICE: SHE

KILLED 12”. On 21 December 1998 the Regional Public Prosecutor

withdrew charges against A and, following negotiations with the

prosecutor and the Ministry of Justice, A accepted a settlement with the

Ministry of Justice on compensation totalling DKK 700,000 for false

imprisonment. A then instituted proceedings for libel against B, the editorin-chief

of C, claiming cancellation of certain statements published in the

newspaper and of compensation in the amount of DKK 0.5m. The High

Court found that the statements in the newspaper held that A was guilty of

10-12 incidents of homicide according to the assessment by the police, and

that the identity of A was deemed to have been known by a significant

group of people in spite of the prohibition against dissemination of her

name. The statements were therefore of a defamatory nature, cf. section

267(1) of the Criminal Code. At the balancing of the protection of the

freedom of expression of the press and the protection against defamation,

great importance must be attached to the fundamental protection of the

individual that is based on the presumption of innocence stipulated by

Article 6(2) of the ECHR. C’s statement was therefore deemed not to be

exempted from punishment in pursuance of section 269(1) of the Criminal

Code, cf. Article 10 of the ECHR, and there was no basis for remitting

punishment under section 269(2) of the Criminal Code. Some of the

statements were therefore found unjustified, and B was sentenced to 20 day

fines of DKK 2,000 and payment of compensation to A in the amount of

DKK 100,000. The Supreme Court upheld the High Court judgment on the

basis of its premises.

Danish Weekly Law Reports 2003, p. 2044, Supreme Court (U.2003.2044H)

Astatement that a politician had “racist viewpoints” did not imply criminal

defamation.

T, a representative of the People’s Movement against the EU

(Folkebevægelsen mod EU), said to the radio news in October 1999: “and I

prefer not to be identified with the racist viewpoints of Pia Kjærsgaard (A),

and I am convinced that it will be the general attitude of a campaign.” This

statement was given as the reason by the People’s Movement for not

wanting any cooperation with the right-wing Danish People’s Party

(Dansk Folkeparti), P, of which A was the chairperson, in the anti-euro

campaign. A instituted criminal proceedings against T, alleging that the

statement was defamatory. The Supreme Court acquitted T. According to


the Danish Language Council (Dansk Sprognævn), the word racism has

three different meanings in contemporary Danish: (1) as related to the racial

anthropology of the Nazis and its consequences to the Jews; (2) as aiming

at the superiority of one race compared to other races, particularly the

relations between black and white; and (3) as aiming at differential

treatment and suppression of or even just dissociation from groups of

people, who might even be of the same race as oneself. According to T’s

statement, she had used the expression “racist viewpoints” according to the

third meaning, aiming at a negative attitude to immigrants. Since this

attitude must be deemed generally known among Danes, and since it was

also deemed generally known that there was no basis for blaming A and P

for having racist viewpoints according to any of the two first meanings, the

Supreme Court found that the expression “racist viewpoints” could also be

meant to aim only at the third meaning of the word racism. Therefore the

statement was only criminal defamation if, by its form, it was deemed to

be improper. T’s statement was first of all based on the views expressed by

A in her speech at P’s annual meeting earlier that October. These views

concerned not only her argumentation for restricting future immigration,

but were also a direct and crude assault on Danish immigrants, particularly

the Muslim ones. T’s statement was made in a relevant political context and

must be conceived to be aimed not at A’s person, but at the views expressed

by A as the chairperson of P. T’s use of the expression “racist viewpoints”

could not be deemed improper in the present circumstances, for which

reason T had not violated section 267(1) of the Criminal Code. The Supreme

Court noted that the opposite decision would be contrary to Article 10 of

the European Convention on Human Rights on freedom of expression, as

this rule is interpreted by the European Court of Human Rights. The

expression “racist viewpoints” could be characterised as T’s value

judgment of A’s and P’s views. The expression was used in a political

debate about essential social matters, and the use had had sufficient

foundation in A’s statements at the annual meeting of P. Against this

background and based on an overall assessment, T’s use of the expression

“racist viewpoints” was deemed not to exceed the limits of the freedom of

expression.

Danish Weekly Law Reports 2003, p. 1029, Supreme Court (U.2003.1029H)

Duty of the owner of a vehicle to reveal to the police who had been the

driver of the vehicle when the speed limit was exceeded, although the

driver could have been a close relative of the owner’s.

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T, the owner of a car, was requested by the police to reveal who had been

the driver of his car when the speed limit was exceeded according to the

measurement at a radar check. It was apparent from the photo taken in

connection with the measurement that the driver was not T himself. T

refused to reveal it to the police, referring to the risk of exposing his close

relatives to punishment or loss of welfare by providing the information. T

was then charged with violation of section 65(1) of the Road Traffic Act. In

support of his claim for acquittal, T submitted that according to the section

750, cf. section 753, cf. section 173, cf. section 171, of the Administration of

Justice Act, he was not obliged to give evidence about the matter, and he

also had the right to remain silent according to Article 10 of the ECHR. T

was found guilty and sentenced to a fine of DKK 500. It was taken into

account that T did not risk exposing himself to punishment by observing

his duty of disclosure under section 65(1) of the Road Traffic Act, and that

section 65(1) did not fix any restriction on the scope of the duty of

disclosure, nor did the travaux préparatoires of this provision do so.

(Dissenting judge(s))

4. Judgments of the European Court of Human Rights

Cases decided:

Pedersen and Baadsgaard v. Denmark, application No. 49017/99, judgment of

19 June 2003.

Decision: No violation of Article 6(1) of the ECHR..

The facts of the case

The applicants, the television journalists Jørgen Pedersen and Sten Kristian

Baadsgaard, had produced two television programmes ‘Convicted of

Murder’ (Dømt for mord) and ‘The Blind Eye of the Police’ (Politiets blinde

øje), which were broadcast on 17 September 1990 and 22 April 1991

respectively.

The programmes dealt with a murder trial in 1982 in which a person, called

X, was sentenced to 12 years’ imprisonment for murdering his wife. The

applicants tried to prove in the television programmes that X was innocent.

In that connection they asked why the police report did not contain an

important witness statement and who in the police or prosecutor’s office

should carry the responsibility for this. Aspecific Chief Superintendent was

named as the one who could be responsible.


On 23 May 1991 the Chief Superintendent reported the two journalists to

the police for defamation under section 267 of the Criminal Code, and on

19 January 1993 they were charged with defamation.

They were sentenced at both the District Court of Gladsaxe, the Eastern

High Court and the Supreme Court of violation of section 267 of the

Criminal Code. All court instances agreed that the accused (the applicants)

had taken a stand on the truth of the witness statement and expressed that

the Chief Superintendent had suppressed the statement. The accused were

each sentenced to 20 day fines of DKK 400 and ordered to pay damages of

DKK 100,000 in compensation.

In 1990, the Special Court of Indictment and Revision (Den Særlige

Klageret) reopened X’s case. He was acquitted on 13 April 1992.

The Court’s assessment

The journalists lodged their application with the Court on 30 December

1998.

Alleged violation of Article 6(1) of the ECHR

The applicants complained that Article 6(1) had been violated because the

length of the criminal proceedings violated the provision of Article 6,

entitling everyone “to a fair and public hearing within a reasonable time”.

The Court said with reference to its case-law that the relevant period begins

at the time when formal charges are brought against a person or when that

person’s situation has otherwise been substantially affected by the actions

taken by the prosecuting authorities as a result of a suspicion against him.

No measures of criminal procedure were taken against the applicants

before 19 January 1993 when they were charged with defamation under

section 267 of the Criminal Code. Accordingly, the relevant period began to

run from this date and ended on 28 October 1998, when the Supreme Court

gave its judgment. The total length of the proceedings thus constituted five

years, nine months and nine days.

The Court said that the reasonableness of the length of the proceedings is

to be assessed in the light of the particular circumstances of the case, in

particular the complexity of the case, the conduct of the applicant and that

of the authorities.

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The Court considered that certain features of this particular case were

complex and time-consuming.

The Court said that only delays attributable to the State may justify a

finding of failure to comply with the ‘reasonable time’ requirement.

Moreover, one of the applicants was held responsible for delays caused by

his representative.

The Court emphasised that the applicants’ use of remedies had prolonged

the proceedings, and that the scheduling of court hearings, etc., was made

in agreement with counsel for the applicants, and it found no reason to

criticise the authorities for their conduct, as the proceedings did not

disclose any periods of unacceptable inactivity.

Making an overall assessment of the case, the Court found that the length

of the proceedings did not go beyond what may be considered reasonable

in this particular case. Accordingly, there had been no violation of Article

6(1).

Alleged violation of Article 10 of the ECHR

The applicants complained that the judgment of the Supreme Court

amounted to a disproportionate interference with their right to freedom of

expression safeguarded in Article 10.

The Court noted in this respect that it was common ground between the

parties that the judgment of the Supreme Court constituted an interference

with the right to freedom of expression, as guaranteed by Article 10 of the

ECHR, but that this interference was prescribed by law and pursued a

legitimate aim, namely the protection of ‘the reputation or rights of others’,

within the meaning of Article 10(2). The Court endorsed this assessment.

The parties’ dispute therefore related to the question whether the

interference was ‘necessary in a democratic society’.

The Court referred to its well-established case-law, whereby the test of

necessity requires that an interference corresponds to a ‘pressing social

need’, that it is proportionate to the legitimate aim pursued, and that the

reasons given by the national authorities to justify the interference are

relevant and sufficient.


In assessing whether such a need exists and what measures should be

adopted to deal with it, the national authorities are left a certain margin of

appreciation. This power of appreciation is not, however, unlimited but is

subject to supervision by the Court.

The press fulfils an essential function in a democratic society. Although the

press must not overstep certain bounds, in particular in respect of ‘the

reputation and rights of others’ and the need to prevent the disclosure of

confidential information, its duty is nevertheless to impart information and

ideas on all matters of public interest. Journalistic freedom also covers

recourse to a degree of exaggeration, or even provocation.

The national margin of appreciation is circumscribed by the interest of a

democratic society in enabling the press to exercise its vital role of public

watchdog.

The Court said that although the limits of acceptable criticism in respect of

civil servants may be wider than in relation to private individuals, certain

civil servants, such as public prosecutors and superior police officers, must

enjoy public confidence. It may therefore be necessary to protect them from

unfounded accusations related to their tasks.

The Court said that a distinction must be drawn between statements of fact

and value judgments. A requirement to prove the truth of a value judgment

is impossible to fulfil and infringes freedom of opinion itself, which is a

fundamental part of the right secured by Article 10. Interference with value

judgments may, however, be justified if there is no factual basis to support

the statement.

The Court found that the applicants, by asking the said questions, took a

stand on the truth of the evidence statement and presented the matters in

such a way that viewers were given the impression that it was a fact that

the witness had given an explanation in 1981, that the police were therefore

in possession of this explanation, and that this report had subsequently

been suppressed.

In the view of the Court, the accusation against the Chief Superintendent

could not be understood as a value judgment, but was an allegation of facts

which emanated from the applicants themselves.

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Article 10 protects journalists’ right to divulge information on issues of

general interest, provided that they are acting in good faith and on accurate

factual basis and provide reliable and precise information in accordance

with the ethics of journalism.

Article 10 does not guarantee an unlimited freedom of expression, not even

for the press in playing the role of public watchdog. Under the terms of

Article 10(2), the exercise of the freedom of expression carries with it ‘duties

and responsibilities’. They also apply to the press.

In its assessment of the verification of the allegation, the Court observed

that the inquiry into the police investigation in the murder case revealed

that no evidence had been suppressed, that police inquiries involved about

900 people, and that the applicants based their allegation on one witness

only. The Court noted that the witness appeared over nine years after the

events took place and that the applicants did not check whether there was

an objective basis for her statement.

In these circumstances the Court found it doubtful, having regard to the

nature of the accusation, that the applicants’ research was adequate or

sufficient to substantiate their allegation.

According to the judgment of the Supreme Court, the judges balanced the

right to impart information against the protection of the reputation and

rights of others and found no basis for the allegation, but emphasised that

the purposes of the programme could have been satisfied without making

such an allegation. In sum, the Court found that the Supreme Court was

entitled to consider that the judgment was necessary for the protection of

the reputation and rights of others in pursuance of Article 10(2).

Accordingly, there has been no violation of Article 10.

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The Human Rights Committee (HRC).

Opinions:

Human Rights Committee

The Committee has not examined Denmark in the period under review.


Concrete cases:

Human Rights Committee

No complaints against Denmark for violation of the right to freedom of

expression and information have been considered in the period under

review.

6. Government initiatives

No relevant Government initiatives have been launched in the period

under review.

Freedom of Assembly and Association

Convention provisions: Article 11 of the ECHR and Articles 21 and 22 of the

ICCPR.

Article 12 of the Charter of Fundamental Rights of the European Union.

Sections 78 and 79 of the Danish Constitution.

Article 11 of the ECHR

1. Everyone has the right to freedom of peaceful assembly and to freedom of

association with others, including the right to form and to join trade unions for the

protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as

are prescribed by law and are necessary in a democratic society in the interests of

national security or public safety, for the prevention of disorder or crime, for the

protection of health or morals or for the protection of the rights and freedoms of

others. This Article shall not prevent the imposition of lawful restrictions on the

exercise of these rights by members of the armed forces, of the police or of the

administration of the State.

Section 78 of the Danish Constitution

(1) Citizens shall, without previous permission, be free to form associations for any

lawful purpose.

(2) Associations employing violence, or aiming at the attainment of their object by

violence, by instigation to violence, or by similar punishable influence on persons

holding other views, shall be dissolved by court judgment.

(3) No association shall be dissolved by any government measure; but an

association may be temporarily prohibited, provided that immediate proceedings be

taken for its dissolution.

(4) Cases relating to the dissolution of political associations may, without special

permission, be brought before the Supreme Court of Justice of the Realm.

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86

(5) The legal effects of the dissolution shall be determined by statute.

Section 79 of the Danish Constitution

Citizens shall, without previous permission, be at liberty to assemble unarmed. The

police shall be entitled to be present at public meetings. Open-air meetings may be

prohibited when it is feared that they may constitute a danger to the public peace.

1. Bills

Title:

Bill amending the Act on Protection against Dismissal due to Association

Membership (extended protection of the negative freedom of

association)

The Bill lays down an extended protection of the negative freedom of

association so that an employer may not require membership of a particular

union when hiring staff, nor can an employer state lack of membership as

the reason for dismissal. The Bill also specifies that agreements may no

longer be concluded under which an employer will only or mainly hire

employees who are members of a specific union (closed shop agreements).

Assessment by the Institute:

The Institute has not received any consultation papers.

References:

Bill No. L 120, introduced in writing on 9 January 2003: Supplement A, column 2756.

The second reading of the Bill on 27 May 2003 was adjourned, and the Bill was returned for

renewed consideration by the Standing Committee on the Labour Market

(Arbejdsmarkedsudvalget). The Bill will not be reintroduced for some time.

2. Danish court decisions

Eastern and Western High Courts:

Danish Weekly Law Reports 2002, p. 2591, Eastern High Court

(U.2002.2591Ø)

Statute of Home Rule Parliament ranks equal with legislation. Requirement

of membership of a specific trade union to be eligible for public assistance

was not contrary to human rights.

Statute of the Greenland Home Rule Parliament must be deemed to rank

equal with legislation. The statute stipulated membership of a specific

trade union as a condition for employees’ eligibility for public assistance as


compensation for loss of earnings caused by unemployment or sickness. It

was mentioned that every employee, regardless of union membership, was

entitled to public assistance under the social legislation and that such

assistance was more or less of the same order as the amount fixed according

to the statute. It was found against this background that the rules on social

assistance did not interfere with the right of employees to form

associations, as guaranteed by section 78(1) of the Danish Constitution and

Article 11 of the ECHR, and by ILO and other international conventions.

Supreme Court:

No judgments concerning the right to freedom of assembly and association

have been published in the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the right to freedom of assembly and association

have been published in the period under review.

4. Judgments of the European Court of Human Rights

Cases declared inadmissible:

Hoffman Karlskov v. Denmark, application No. 62560/00.

Article 11 of the ECHR, declared inadmissible on 20 March 2003.

The Court found that the complaint was of an abstract nature and that the

applicant pursued a general assessment of the compatibility of the Danish

Act on Protection against Dismissal due to Association Membership with

the ECHR. Accordingly, the applicant could not be deemed a victim of a

violation of Article 11. The application was then rejected under article 35(3).

Jensen and Rasmussen v. Denmark, application No. 52620/99.

Article 11 of the ECHR, declared inadmissible on 20 March 2003.

The Court found that the complaint was of an abstract nature and that the

applicant pursued a general assessment of the compatibility of the Danish

Act on Protection against Dismissal due to Association Membership with

the ECHR. Accordingly, the applicant could not be deemed a victim of a

violation of Article 11. The application was then rejected under article 35(3).

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5. Opinions of and concrete cases before the Committees

Relevant Committees:

The Human Rights Committee (HRC).

Opinions:

Human Rights Committee

The Committee has not examined Denmark in the period under review.

Concrete cases:

Human Rights Committee

No complaints against Denmark for violation of the right to freedom of

assembly and association have been considered in the period under review.

6. Government initiatives

No relevant Government initiatives have been launched in the period

under review.

Right to an Effective Remedy

Convention provisions: Article 13 of the ECHR and Article 2(3) of the

ICCPR.

Article 47 of the Charter of Fundamental Rights of the European Union.

Article 13 of the ECHR

Everyone whose rights and freedoms as set forth in this Convention are violated

shall have an effective remedy before a national authority notwithstanding that the

violation has been committed by persons acting in an official capacity.

1. Bills

No bills concerning the right to an effective remedy have been introduced

in the period under review.

2. Danish court decisions

Eastern and Western High Courts:

No judgments concerning the right to an effective remedy have been

published in the period under review.


Supreme Court:

No judgments concerning the right to an effective remedy have been

published in the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the right to an effective remedy have been

published in the period under review.

4. Judgments of the European Court of Human Rights

No judgments or decisions concerning the right to an effective remedy have

been published with Denmark as a party to the case in the period under

review.

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The Human Rights Committee (HRC).

Opinions:

Human Rights Committee

The Committee has not examined Denmark in the period under review.

Concrete cases:

Human Rights Committee

No complaints against Denmark for violation of the right to an effective

remedy have been considered in the period under review.

6. Government initiatives

No relevant Government initiatives have been launched in the period

under review.

Prohibition of Discrimination

Convention provisions: Article 14 of the ECHR, Articles 2 and 26 of the

ICCPR and Article 5 of the ICERD.

Council Directive 2000/43/EC of 29 June 2000 implementing the principle

of equal treatment between persons irrespective of racial or ethnic origin

(the Race Directive) and Council Directive 2000/78/EC of 27 November

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2000 establishing a general framework for equal treatment in employment

and occupation (the Employment Directive).

Articles 20, 21 and 25 of the Charter of Fundamental Rights of the European

Union.

Section 70 of the Danish Constitution.

Article 14 of the ECHR

The enjoyment of rights and freedoms set forth in the Convention shall be secured

without discrimination on any ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin, association with a national

minority, property, birth or other status.

Section 70 of the Danish Constitution

No person shall by reason of his creed or descent be deprived of access to the full

enjoyment of civic and political rights, nor shall he escape compliance with any

common civic duty for such reasons.

1. Bills

Title:

Bill on Equal Treatment irrespective of Ethnic Origin

Background:

The Bill is intended to enhance protection against differential treatment and

to promote equal treatment of everybody irrespective of racial or ethnic

origin. The Bill intends to implement part of the Race Directive

(2000/43/EC) and builds on the report of the Danish Equal Treatment

Committee (Ligebehandlingsudvalget) (Report No. 1422/2002) on

Implementation of the Council Directive implementing the principle of

equal treatment between persons irrespective of racial or ethnic origin.

The Bill contains the following main elements:

(1) The Bill prohibits direct and indirect differential treatment based on

racial or ethnic origin and it prohibits harassment and instructions to

discriminate. Accordingly, the Bill implements extended protection against

differential treatment based on racial or ethnic origin as compared with

applicable law.

(2) The Bill contains provisions on shared burden of proof and prohibition

of reprisals. Application of the principle of shared burden of proof and the


prohibition of reprisals contributes to efficient implementation of the

principle of equal treatment. A consequence of the principle of shared

burden of proof is that the burden of proof is on the opposing party when

proof has been submitted of facts giving rise to the assumption that direct

or indirect differential treatment has occurred.

(3) It is proposed to insert a provision on the right to compensation. Such

provision will safeguard the right to compensation for non-pecuniary

damage, as generally any violation of the prohibition of differential

treatment and the prohibition of reprisals will lead to the awarding of

financial compensation to everyone who has experienced differential

treatment.

(4) It is proposed to authorise the Danish Institute for Human Rights to

consider complaints of violation of the prohibition of differential treatment

based on racial or ethnic origin and violation of the prohibition of reprisals.

The Institute can render its opinion as to whether individual acts

complained of constitute violation. The Institute can urge the authorities to

grant free legal aid for such proceedings.

The Bill supplements the existing protection against differential treatment

based on racial or ethnic origin in Danish law, including in the Act on

Prohibition against Differential Treatment Based on Race, etc. and the Act

on Prohibition against Differential Treatment on the Labour Market, etc.

A Bill amending the Act on Prohibition against Differential Treatment on

the Labour Market, etc. is introduced simultaneously with the above Bill.

One of the intentions of the Bill amending the Act on Prohibition against

Differential Treatment on the Labour Market, etc. is to implement the

provisions of the Race Directive (2000/43/EC).

Human rights:

The Bill concerns the strengthening of citizens’ right to legal remedies and

thereby has a positive effect on the implementation of both the Race

Directive and the International Convention on the Elimination of All Forms

of Racial Discrimination.

Assessment by the Institute:

Below, the Institute will comment on the authority that will be granted to

the Institute in pursuance of section 10 of the Bill to consider complaints,

and which seems to be the most important novelty relative to Report No.

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1422/2002 on Implementation of the Council Directive implementing the

principle of equal treatment between persons irrespective of racial or ethnic

origin.

The Institute considers it very positive that a general right of citizens to

complain of discrimination based on racial or ethnic origin will be

established by the enactment of the Bill. By establishing a complaints body,

an actual need for free consideration of complaints will be complied with.

In this way citizens’ right to positive remedies will be improved as seen in

relation to the implementation of both the Race Directive and the

International Convention on the Elimination of All Forms of Racial

Discrimination.

As mentioned in Report No. 1422/2002, the Institute would have preferred

that an independent complaints body with wider authority to consider

complaints than that granted by the present Bill had been entrusted with

this task. During the committee stage, this issue was discussed several

times by the Board of the Institute, which unanimously supported this

viewpoint on a complaints body expressed by the Institute’s representative

on the Committee. Even though the complaints scheme laid down in the

Bill does not live up to the scheme desired by the Institute, the Institute is

prepared to accept and carry out the task professionally, within the limits

following from the legal authority granted to the Institute and the financial

means appropriated to the task.

The Institute acknowledges that, as a complaints body, it is only entitled to

issue opinions indicating whether or not section 3 of the Bill has been

violated in the Institute’s point of view, accompanied by a recommendation

for free legal aid if section 3 is deemed to have been violated. Although the

opinions of the Institute will not as such have any independent legal effects,

the Institute finds nevertheless that its opinions on compliance with or

violation of the provision of this Bill are declarations under Danish

administrative law, one of the effects being that the provisions of this Bill

on the implementation of declarations must be followed. This perception

of opinions issued by the Institute also seems to have been applied in the

explanatory notes of the Bill.

The explanatory notes say that the “Institute may express whether, in its

point of view, the prohibition of differential treatment based on racial or

ethnic origin has been violated”, whereas it falls “outside the scope of

authority of the Institute to express criticism in the form of regret,


disapproval or the like, irrespective of whether the act was contrary to

legislation”. The Institute notes this construction of section 10(2) of the Bill

and will base its processing of complaints on such construction. As a matter

of form, the Institute has to point out that any opinions published by the

Institute which state that an authority or a company is deemed to have

acted contrary to the law will inevitably be negatively perceived by such

authority or company.

The Institute would request an amendment of one thing in the explanatory

notes of section 10. It is the sentence that the provision on “the shared

burden of proof laid down in section 7 of the Bill” does not apply to the

Institute. The proposer can hardly have intended the Institute to assess

complaints according to rules which differ from those of the Bill, and

thereby according to rules other than those to be applied by the courts and

the Parliamentary Ombudsman at any subsequent proceedings concerning

such complaints. If the sentence quoted is to be taken literally, the Institute

will not be able to play the intended role. Its opinions will not be guiding

because any subsequent court proceedings or examination by the

Parliamentary Ombudsman will be conducted according to differing rules,

and the Institute cannot give any meaningful recommendations on free

legal aid. Naturally it is correct when stated in the same paragraph of the

Bill that the Institute shall use the same general inquisitorial principle of

administrative law when examining complaints, but that does not in any

way exclude the possibility of taking into consideration the provision of

section 7 on shared burden of proof, and it is not even an argument against

the Institute’s application of section 7 in the same way as its application of

all the other provisions of the Bill.

When the Institute is entrusted with the task of examining complaints, two

requirements are made of the organisation of the Institute. First of all, the

examination of complaints must be entrusted to a unit that functions

independently of the other activities of the Institute. Only in this way can

the integrity and reliability of the complaints unit be safeguarded and the

other functions of the Institute be protected against dilution as a

consequence of the new task. Secondly, the Institute cannot provide

guidance and assistance to victims of differential treatment and at the same

time make decisions about complaints. A combination of these two tasks of

the Institute would challenge the impartiality of the Institute’s examination

of complaints. Since the Bill entrusts the Institute with both functions, the

Institute therefore has to see to it that the victim assistance function will be

assigned to others, e.g. institutions offering free legal aid. The Institute

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interprets the explanatory notes to mean that this is acceptable to the

proposer. The Board of the Institute will therefore make sure that the above

viewpoints are implemented in connection with both functions.

The Institute considers it inexpedient that employees who are not union

members are apparently not protected by the Bill.

Employees who are union members are subject to the direct or indirect

protection against discrimination provided by the industrial arbitration

system: The trade unions and the employers and their organisations will

together solve most conflicts at the initial stages without involving

arbitration tribunals and the Labour Court, and the trade unions will guide

their members and conduct their cases if it proves to be necessary to settle

the disputes by legal proceedings.

To non-union members the situation is different. They are not protected by

the industrial arbitration system, and if they cannot complain to the Danish

Institute for Human Rights, the only option usually left is to institute

proceedings before the ordinary courts. This option involves such costs, or

at least potential costs, that in reality such persons would have no remedies

against discrimination. This is an unfortunate situation, not least because

most ethnic minority employees are probably not union members.

During the committee period, the Institute’s representative on the Equal

Treatment Committee emphasised the need for making non-union

members subject to a complaints scheme set up by the Bill on Equal

Treatment irrespective of Ethnic Origin. Since the viewpoint has not been

taken into consideration yet, the Institute would use this opportunity to

repeat it.

The request of the Institute can presumably be accommodated by

amending section 2(2) of the Bill to read as follows: “This Act does apply to

situations comprised by the Act on Prohibition against Differential

Treatment on the Labour Market, etc. that can be settled by industrial

arbitration.”


References:

Act No. 374 of 28 May 2003.

Entry into force: 1 July 2003.

Bill No. L 155, introduced in writing on 29 January 2003: Supplement A, column 3880.

The Bill as adopted: Supplement C, column 433.

Draft Bill on Equal Treatment irrespective of Ethnic Origin, distributed as an enclosure to the

consultation papers of 21 January 2003 from the Ministry of Refugee, Immigration and

Integration Affairs.

Reply of the Institute of 11 February 2003, prepared by the Board of the Danish Institute for

Human Rights.

Title:

Proposed Council Directive on compensation to crime victims

Background:

The objective of the proposal is to ensure that all EU citizens and all legal

residents in the European Union (in all Member States of the European

Union) can receive adequate compensation for the losses they suffer in case

they fall victim to a crime within the EU. By introducing minimum

standards of the state compensation to crime victims, the proposal will

contribute to reaching the objective of the Union and of the Community to

establish an area of freedom, security and justice for all, as well as the

objective of ensuring free movement of persons within the EU. The

proposal also forms part of the response of the European Union to the

events of 11 September 2001, by ensuring that victims of terrorism are

ensured of adequate compensation regardless of where within the EU such

acts may take place.

Human rights:

European Convention on the Compensation of Victims of Violent Crimes

(ETS No. 116)

Assessment by the Institute:

The Institute concurs with the opinion that the Directive will contribute to

achieving the aims described, and it finds that it will not give rise to any

human rights problems, cf. in this respect also the European Convention on

the Compensation of Victims of Violent Crimes.

The Institute would, however, mention that it had been advisable had the

Directive followed the law of Denmark (and other countries) so that the

state compensation scheme covered everybody who becomes a victim of

crime within the territory of such state (cf. in this respect Consolidated Act

No. 470 of 1 November 1985, as amended, on State Compensation to

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Victims of Crime). The Institute is aware that the scheme laid down in

Article 3(2) of the proposed Directive, according to which compensation is

(only) paid out to citizens of the European Union and to legal residents of

Member States without discrimination, must be seen in the context of the

objective of the proposal, which is to ensure the right of individuals to move

freely throughout the European Union.

It seems that it should also be taken into consideration that persons who

are not legal residents of a Member State, including persons whose

residence permit has expired, are particularly vulnerable in case of crime

because they will often be in particularly vulnerable positions, and they

will often be reluctant to contact the authorities, cf. in this respect also the

proposal for a Council Directive on the short-term residence permit issued

to victims of action to facilitate illegal immigration or trafficking in human

beings who cooperate with the competent authorities (COM(2002) 71 final).

Therefore there might be a need for extending the Directive to comprise all

victims of a crime within the territory of a Member State. It is noted in this

respect that children (of parents) without legal residence in a Member State

might need special protection, and that compensation could be made

subject to the requirement of reporting the crime within a certain period.

References:

Proposal for a Council Directive on compensation to crime victims (COM(2002) 0562 final),

distributed as an enclosure to the consultation papers of 24 January 2003 from the Ministry of

Justice.

Reply of the Institute of 18 March 2003, prepared by Eva Ersbøl.

The consideration of the Directive had not been completed at the close of the editorial work.

Title:

Draft Executive Order on the curriculum of pre-school classes

Background:

Executive Order No. 499 of 13 June 2003.

General objectives of pre-school education

1(1) Pre-school class education must contribute to the basis of the activities of the

school intended to support the pupils’ versatile personal development by

challenging the individual child in a way that stimulates the child’s curiosity, thirst

for knowledge and eagerness to learn and makes the child familiar with the school.

(2) The aim is that the children, as part of their versatile personal development,

shall gain knowledge and skills on which tuition in basic subjects can build.


(3) Pre-school class education must form a link from the children’s home and day

care to school and from the pre-school class to the next classes and after-school care.

Assessment by the Institute:

The Danish Institute for Human Rights would draw the attention to the Act

on Equal Treatment irrespective of Ethic Origin, enacted by the Danish

Parliament on 20 May 2003. This Act is intended to prevent differential

treatment and to promote equal treatment of everybody irrespective of

racial or ethnic origin. The Act applies to all public and private activities,

including the field of education.

The Institute recommends incorporation of the principles of equal

treatment in the Executive Order. One way of doing that is to include these

principles in the current objective of the Executive Order to make the

objective stipulate that pre-school education must be planned in such a way

that all pupils, irrespective of racial or ethnic origin, can identify

themselves with the contents and aim of the pre-school education.

References:

Executive Order No. 499 of 13 June 2003.

Entry into force: 1 August 2003.

Draft Executive Order on the curriculum of pre-school classes, distributed as an enclosure to

the consultation papers of 7 May 2003 from the Ministry of Education.

Reply of the Institute of 26 May 2003, prepared by Mandana Zarrehparvar.

Title:

Draft Executive Order on transitional rules related to the duty of local

authorities to prepare descriptions of educational developments

Background:

Consultation regarding the draft Executive Order on transitional rules

related to the duty of local authorities to prepare descriptions of

educational developments to achieve class and end goals for the school

years 2003-04, 2004-05 and 2005-06.

Assessment by the Institute:

The Danish Institute for Human Rights would draw the attention to the Act

on Equal Treatment irrespective of Ethnic Origin, enacted by the Danish

Parliament on 20 May 2003. This Act is intended to prevent differential

treatment and to promote equal treatment of everybody irrespective of

racial or ethnic origin. The Act applies to all public and private activities,

including the field of education.

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The Institute recommends that the provisions of the Executive Order

comply with the equal treatment principles as set out in the Act on Equal

Treatment irrespective of Ethnic Origin.

References:

Executive Order No. 510 of 13 June 2003.

Entry into force: 1 August 2003.

Draft Executive Order on transitional rules related to the duty of local authorities to prepare

descriptions of educational developments, distributed as an enclosure to the consultation

papers of 7 May 2003 from the Ministry of Education.

Reply of the Institute of 26 May 2003, prepared by Mandana Zarrehparvar.

Title:

Bill amending the Act on Prohibition against Differential Treatment on

the Labour Market, etc.

Background:

The Bill is intended to implement parts of Council Directive 2000/43/EC

of 29 June 2000 implementing the principle of equal treatment between

persons irrespective of racial or ethnic origin (the Race Directive), as

regards labour market conditions and parts of Council Directive

2000/78/EC of 27 November 2000 establishing a general framework for

equal treatment in employment and occupation (the Employment

Directive). The Bill introduces a shared burden of proof in cases concerning

differential treatment on the labour market and specifies the concept of

differential treatment. The Bill must be seen in the context of Act No. 374 of

28 May 2003 on Equal Treatment irrespective of Ethnic Origin. The Bill is a

reintroduction of a bill first introduced in the parliamentary year 2002-03

as Bill No. L 152, introduced in writing on 29 January 2003: Supplement A,

column 3821.

The Bill introduces a new statutory discrimination criterion, stipulating

that no one shall experience differential treatment due to faith.

Assessment by the Institute:

The Institute deems it positive that the Bill amending the Act on Prohibition

against Differential Treatment on the Labour Market introduces faith as a

criterion of the Act as this must be deemed to lead to a higher level of

protection against differential treatment on the labour market.


As regards the prohibition of registration laid down in section 4 of the

current Act, the Institute would mention the expediency of amending this

provision in the Bill to allow an examination of the composition of

employees and of types of applicants for vacant positions, based on

anonymised and non-traceable personal data.

Other than that, the Bill does not give rise to any comments from the

Institute concerning human rights.

Note:

Bill amending the Act on Prohibition against Differential Treatment on the Labour Market, etc.

was reintroduced in October 2003 as Bill No. L 40. The previous Bill No. L 152 was dismissed

at the third reading on 27 May 2003. The time limit of implementation of the provisions of

Council Directive 2000/43/EC concerning collective agreements, cf. Article 16 of the

Directive, expired on 19 July 2003.

References:

Bill No. L 40, introduced in writing on 22 October 2003.

The consideration of the Bill in Parliament had not been completed at the close of the editorial

work.

Bill amending the Act on Prohibition against Differential Treatment on the Labour Market, etc.

(Bill No. L 152), distributed as an enclosure to the consultation papers of 26 September 2002

from the Ministry of Employment.

Reply of the Danish Centre for Human Rights of 29 October 2002, prepared by Birgitte Kofod

Olsen.

Title:

Bill amending the Act on Equal Treatment of Women and Men (the

Gender Equality Board (Ligestillingsnævnet) made permanent and

scope of application extended)

The Gender Equality Board has been set up to examine citizens’ complaints

of differential treatment based on sex. As regards employment law, the

Board is also a safety net for employees who are not members of a trade

union. The Bill makes the Board permanent, and in future the Board shall

be competent to consider complaints of differential treatment pursuant to

the Act on Childcare Leave.

References:

Act No. 286 of 25 April 2003.

Entry into force: 1 May 2003.

Bill No. L 124, introduced in writing on 15 January 2003: Supplement A, column 2798.

The Bill as adopted: Supplement C, column 314.

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Title:

Act amending the Act on an Active Social Policy, the Act on Cash Benefits

in the Event of Sickness or Birth, the Act on Flexible Allowance, the

Social Services Act, the Act on Individual Housing Benefits, the Act on

the Procedural Safeguards and Administration in the Social Field, and

the Integration Act

The Act extends the freedom to grant spouse allowance (the so-called

‘apron rule’), thereby making it possible to use the scheme even if the

person in question has only loose ties with the labour market. The

voluntary scheme has been extended to make local authorities competent

to assess whether the relevant person is sufficiently available for the labour

market and consequently eligible for cash benefit, or whether the financial

assistance should instead be granted as an allowance to the spouse.

Assessment by the Institute:

The Institute has not received any consultation papers.

References:

Act No. 417 of 10 June 2003.

Entry into force: 1 July 2003.

Bill No. L 191, introduced in writing on 13 March 2003: Supplement A, column 5893.

The Bill as adopted: Supplement C, column 191.

2. Danish court decisions

Eastern and Western High Courts:

No judgments concerning the prohibition of discrimination have been

published in the period under review.

Supreme Court:

No judgments concerning the prohibition of discrimination have been

published in the period under review.

3. Opinions of the Parliamentary Ombudsman

Please refer to the section on the Rights of the Disabled.

4. Judgments of the European Court of Human Rights

Cases declared inadmissible:

Sørensen v. Denmark, application No. 52562/99.


Article 14 of the ECHR, declared inadmissible on 20 March 2003.

The Court did not consider the applicant’s claim that he was subjected to

discrimination in a trade union that he was forced to join and in which he

did not have the same membership rights as the other members. The Court

declared the application inadmissible because the applicant had not

exhausted domestic remedies within the meaning of Article 35(1).

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The Committee on the Elimination of Racial Discrimination (CERD) and

the Human Rights Committee (HRC).

Opinions:

Committee on the Elimination of Racial Discrimination

The Committee has not examined Denmark in the period under review.

Human Rights Committee

The Committee has not examined Denmark in the period under review.

Concrete cases:

Committee on the Elimination of Racial Discrimination

Cases decided:

Quereshi v. Denmark, communication No. 27/2002 of 19 August 2003.

Decision: No violation of the ICERD.

From 20 to 22 October 2001, the Progressive Party (Fremskridspartiet) held

its annual meeting. At the meeting, several party members made racist

statements. The persons who had made the statements were convicted of

violation of section 266b of the Criminal Code. The petitioner, Kamal

Quereshi (MP), requested the Advisory Centre on Racial Discrimination

(DRC) to file a criminal complaint against each member of the executive

board of the Progressive Party for violation of section 266b, cf. section 23,

of the Criminal Code. On 11 December 2001, the DRC reported Pia

Andersen as a member of the party’s executive board to the Chief Constable

of Odense. The Chief Constable rejected the complaint, considering that

membership of a political party’s executive board does not of itself create

a basis for criminal participation in relation to possible criminal statements

made during the party’s annual meeting by other persons. On 11 March

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2002, the Regional Public Prosecutor for Funen rejected the complaint,

finding that neither the petitioner nor the DRC had the required essential,

direct, individual or legal interest to become parties in the case.

The petitioner argued that the decision of the Prosecution not to initiate an

investigation constituted a violation of Articles 2(1)(d), 4 and 6 of the

International Convention on the Elimination of All Forms of Racial

Discrimination.

The Committee found that the Danish authorities had acted correctly by not

investigating the matter because there was no evidence suggesting that Pia

Andersen had engaged in any racist statements at the meeting. According

to general principles of criminal law, liability of a member of a party’s

executive board cannot attach in respect of statements made by third

persons. The persons who had made the statements had been provisionally

charged, and the authorities had taken effective measures against the

violation of section 266b. The Committee emphasised that “the terms of

Article 6 do not impose upon States parties the duty to institute a mechanism

of sequential remedies” in cases of alleged racial discrimination.

The Committee asked Denmark to notify it about the outcome of the

provisional charges against the speakers who had made remarks of a racist

nature contrary to Article 4(b). The Committee drew the attention of

Denmark to the need to balance freedom of expression with the

requirements of the Convention to prevent and eliminate all acts of racial

discrimination, particularly in the context of statements made by members

of political parties.

Accordingly, the Committee concluded that the facts of the case did not

disclose a violation of the Convention.

Cases declared inadmissible:

Sadic v. Denmark, communication No. 25/2002, declared inadmissible on 16

April 2003.

On 25 July 2000, the petitioner was exposed to racist statements from his

employer in connection with a quarrel concerning payment for overtime.

Through the Documentation and Advisory Centre on Racial

Discrimination (DRC), the petitioner informed the police of the incident,

arguing that section 266b of the Criminal Code had been violated, but the

Prosecution decided to discontinue the investigation.


The petitioner claimed that the State party had violated its obligations

under Articles 2(1)(d) and 6 by not investigating the matter in detail.

The Committee declared the communication inadmissible because the

petitioner had failed to exhaust all domestic remedies as he did not request

the institution of criminal proceedings under section 267 of the Criminal

Code. The Committee observed that the notion of effective remedy within

the meaning of Article 6 is not limited to criminal proceedings based on

provisions which specifically penalise acts of racial discrimination.

However, the Committee invited Denmark to reconsider section 266b of the

Criminal Code, since the restrictive condition that a statement must be

made “publicly or with the intention of wider dissemination” does not

appear to be fully in conformity with the requirements of Articles 4 and 6

of the Convention.

The Documentation and Advisory Centre of Racial Discrimination (DRC) v.

Denmark, communication No. 28/2002, declared inadmissible on 26 August

2003.

The communication concerned a complaint of a job advertisement, reading

as follows: “Construction company seeks Danish foreman”.

The petitioner alleged violations by the Danish authorities of Articles

2(1)(d), 4, 5 and 6 of the International Convention on the Elimination of All

Forms of Racial Discrimination as they failed to investigate whether the job

advertisement constituted an act of racial discrimination punishable under

section 5 of the Act on Prohibition against Differential Treatment on the

Labour Market, etc.

Since the DRC had submitted the petition, but did not represent any

identifiable victims personally affected by the said job advertisement, the

Committee declared the communication inadmissible under Article 14(1)

of the Convention.

POEM and FASM v. Denmark, communication No. 22/2002, declared

inadmissible on 15 April 2003.

The communication concerned a statement made by the leader of the

Danish People’s Party (Dansk Folkeparti), Pia Kjærsgaard, which was

disseminated on the party’s website and through a press release. In this

statement she said among other things that the multiculturalisation of

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Denmark brings trouble like gang and group formation, mass rape and

complete indifference to the principles on which the Danish legal system is

built.

The Documentation and Advisory Centre on Racial Discrimination (DRC)

reported the statement to the police, alleging a violation of section 266b of

the Criminal Code. The Prosecution decided to discontinue the case as

weight should be given to considerations related to the freedom of

expression and of political debate, although the statement could be

considered as offensive.

The petitioners, the Umbrella Organisation for the Ethnic Minorities

(POEM) and the Association of Muslim Students (FASM), claimed a

violation by Denmark of Article 2(1)(d) together with Article 6, Article

2(1)(d) together with Articles 4 and 6, and Articles 4 and 6. Since the

domestic remedies were exhausted by the DRC and not the petitioners, the

Committee found the communication inadmissible under Article 14(7)(a).

However, the Committee called the State party’s attention to the content of

paragraph 115 of the Programme of Action adopted by the World

Conference against Racism, Racial Discrimination, Xenophobia and

Related Intolerance in Durban (South Africa) on 8 September 2001, which

underlines the key role that politicians can play in combating racism, etc.

The political parties were encouraged to take concrete steps to promote

equality, solidarity and non-discrimination, inter alia by developing

voluntary codes of conduct and internal disciplinary measures for

violations thereof, so that their members refrain from public statements

that encourage or incite to racism, etc.

Human Rights Committee

The Committee has not considered any complaints against Denmark in the

period under review.

6. Government initiatives

Programme of Action against Racism, Racial Discrimination, Xenophobia and

Related Intolerance

In 2001, a World Conference against Racism, Racial Discrimination,

Xenophobia and Related Intolerance was held in Durban (South Africa).

The Conference ended with a Declaration and a Programme of Action,

which were signed by several states, including Denmark. Thereby


Denmark undertook to draw up a plan of action to combat racism, racial

discrimination, xenophobia and related intolerance. The Government

expects to publish its plan of action in November 2003.

2003 Long-term Plan of Action for Equal Treatment

In February 2003, the Government submitted a white paper on the equal

treatment in 2002 to Parliament. At the same time the Minister for Gender

Equality submitted a Long-term Plan of Action on various initiatives within

four main focus areas in 2003: (1) integration from a gender perspective; (2)

women in management, politics and research; (3) health for women and

men; and (4) youth culture and modern sex roles.

Mainstreaming, a new equality strategy

According to the Equal Treatment Act, all authorities must build equality

into their planning and activities, also referred to as the mainstreaming

strategy. The Minister for Gender Equality published guidelines in January

2003 on how to integrate equality in management activities, campaigns,

bills and data. These guidelines also pointed to the way that the

mainstreaming strategy can be applied to assure the quality of other

activities.

7. Miscellaneous

One of the major projects of the Institute concerning discrimination is the

MIA project, which is intended to create dialogue and focus on diversity

and equal treatment at workplaces in Denmark. The project is funded by

the EU, which has adopted two Directives intended to safeguard the equal

treatment of everybody – irrespective of ethnic origin, religion, disability,

age and sexual orientation.

Denmark will implement two Council Directives on equal treatment in the

period 2003-2006. They are the Race Directive (2000/43/EC) and the

Employment Directive (2000/78/EC). The project is funded by the

Community Action Programme under the third line of action, that is funds

for national information campaigns related to the two Directives.

MIA recommends diversity at workplaces as the best way of

accommodating the principle of equal treatment. Diversity is about

creating equal opportunities for everybody and using differences as a

resource and source of innovation and creativity.

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In connection with the project the MIA Prize was instituted to point to best

practices and reward companies that actively promote diversity. The first

MIA Prize will be awarded on 30 March 2004. All companies can be

nominated for the MIA Prize if they have taken specific initiatives and

created results promoting diversity and safeguarding equality irrespective

of sex, ethnic origin, religion, age, disability, sexual orientation and political

opinion.

Protection of Property

Convention provisions: Article 1 of the First Protocol to the European

Convention on Human Rights.

Article 17 of the Charter of Fundamental Rights of the European Union.

Section 73 of the Danish Constitution.

Article 1 of the First Protocol to the European Convention on Human Rights

Every natural or legal person is entitled to the peaceful enjoyment of his

possessions. No one shall be deprived of his possessions except in the public interest

and subject to the conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair the right of a State

to enforce such laws as it deems necessary to control the use of the property in

accordance with the general interest or to secure the payment of taxes or other

contributions or penalties.

Section 73 of the Danish Constitution

(1) The right of property shall be inviolable. No person shall be ordered to surrender

his property except where required in the public interest. It shall be done only as

provided by statute and against full compensation.

(2) Where a Bill has been passed relating to the expropriation of property, one-third

of the members of the Folketing may, within three weekdays from the final passing

of such Bill, demand that it shall not be presented for the Royal Assent until new

elections to the Folketing have been held and the Bill has again been passed by the

Folketing assembling thereafter.

(3) Any question of the legality of an act of expropriation, and the amount of

compensation, may be brought before the courts of justice. The hearing of issues

relating to the amount of the compensation may by statute be referred to courts of

justice established for such purpose.


1. Bills

No bills concerning the right to protection of property have been

introduced in the period under review.

2. Danish court decisions

Eastern and Western High Courts:

No judgments concerning the right to protection of property have been

published in the period under review.

Supreme Court:

No judgments concerning the right to protection of property have been

published in the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the right to protection of property have been

published in the period under review.

4. Judgments of the European Court of Human Rights

No judgments or decisions concerning the right to protection of property

have been published with Denmark as a party to the case in the period

under review.

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The right to protection of property is not laid down in the UN conventions.

Therefore the UN committees have no power to consider cases concerning

alleged violations of this right. Nor has any committee under the Council

of Europe power to supervise the right to protection of property.

6. Government initiatives

No relevant Government initiatives have been launched in the period

under review.

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Economic, Social and Cultural Rights

Convention provisions: The International Covenant on Economic, Social

and Cultural Rights (ICESCR) and the European Social Charter.

Chapter IV of the Charter of Fundamental Rights of the European Union.

1. Bills

No bills concerning the economic, social and cultural rights have been

introduced in the period under review.

2. Danish court decisions

Eastern and Western High Courts:

No judgments with reference to the economic, social and cultural rights

have been published in the period under review.

Supreme Court:

No judgments with reference to the economic, social and cultural rights

have been published in the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions with reference to the economic, social and cultural rights have

been published in the period under review.

4. Opinions of and concrete cases before the Committees

Relevant Committees:

The UN Committee on Economic, Social and Cultural Rights (CESCR) and

the European Committee of Social Rights (ECSR).

Opinions:

Committee on Economic, Social and Cultural Rights

The Committee has not examined Denmark in the period under review.

European Committee of Social Rights

The Committee published its conclusions XVI-2 to the 22 nd Danish report

concerning Articles 1(4), 2, 3, 4, 9, 10 and 15 of the Charter and Articles 1,

2, 3 and 4 of the 1988 Additional Protocol in early 2003. The assessment

contains 21 conclusions.


In two of the conclusions the Committee found that Danish legislation and

practice were not in accordance with the Charter and the Additional

Protocol:

Article 10(4): Right to vocational training – encouragement for the full utilisation

of available facilities

The Committee took note of the scant information provided by the Danish

report, which only concerned Vocational Education and Training (VET)

programmes, and asked the Danish Government to provide more

information in its next report.

The Committee noted that according to the rules of the Danish State

Education Grant and Loan Scheme (SU), non-nationals enrolled in a VET

programme must have been living in Denmark for at least two years and

during that period have had at least part-time employment or traineeship.

The Committee recalled that, according to the Appendix to the Charter,

equality of treatment shall be provided to nationals of other Parties

lawfully resident or regularly working on their territory.

For this reason the Committee found that the requirement concerning

foreign nationals’ entitlement to public educational grants is not in

conformity with Article 10(4) of the Charter because the requirement of

equal treatment had not been observed.

Article 15(2): Right of physically or mentally disabled persons to vocational

training, rehabilitation and social resettlement – placement arrangements for

disabled persons

This conclusion is summarised in the section on the Rights of the Disabled.

In eight of the conclusions the Committee found that Danish legislation and

practice were in accordance with the Charter.

They concerned the following Articles of the Charter: Article 2(5) on the

right to just conditions of work – the right to a weekly rest period; Article

3(1) on the right to safe and healthy working conditions – the issue of safety

and health regulations; Article 3(2) on the provision for the enforcement of

safety and health regulations by measures of supervision; Article 3(3) on

consultation with employers’ and workers’ organisations on questions of

safety and health; Article 9 on the right to vocational guidance; and Article

10(2) on the right to vocational training – promotion of apprenticeship; and

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the following Articles of the Additional Protocol: Article 2 on the right of

workers to be informed and consulted; and Article 4 on the right of elderly

persons to social protection.

In respect of the conclusions concerning Articles 1(4), 2(2) and (3), 4(1) to

(3), 10(1) and (3), and 15(1) of the Charter and Article 3 of the Additional

Protocol, the Committee needed further information in order to assess the

situation. It asked the Danish Government to communicate the answers to

these questions before 31 March 2006.

5. Government initiatives

No relevant Government initiatives have been launched in the period

under review.


SPECIAL RIGHTS

Rights of Women

Convention provisions: The International Convention on the Elimination

of All Forms of Discrimination against Women (ICEDAW).

Article 23 of the Charter of Fundamental Rights of the European Union.

1. Bills

Title:

Draft Bill amending the Criminal Code (female circumcision)

See the section on the Rights of the Child.

2. Danish court decisions

Eastern and Western High Courts:

No judgments with reference to the Convention have been published in the

period under review.

Supreme Court:

No judgments with reference to the Convention have been published in the

period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions with reference to the Convention have been published in the

period under review.

4. Opinions of and concrete cases before the Committees

Relevant Committees:

Committee on the Elimination of Discrimination against Women (CEDAW).

Opinions:

Committee on the Elimination of Discrimination against Women

The Committee has not examined Denmark in the period under review.

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112

Concrete cases:

Committee on the Elimination of Discrimination against Women

No complaints against Denmark for violation of the rights of women have

been considered in the period under review.

5. Government initiatives

Ratification of the United Nations Convention against Transnational Organized

Crime

On 30 September 2003 Denmark ratified the United Nations Convention

against Transnational Organized Crime and its Protocol to Prevent,

Suppress and Punish Trafficking in Persons, Especially Women and

Children. The purpose of the Convention is to promote international

cooperation to prevent and combat transnational organised crime within

four areas: participation in organised criminal groups, money laundering,

corruption and obstruction of justice, and the purpose of the pertaining

Protocol is to take effective action to prevent trafficking in persons, to

punish the traffickers and to protect the victims of such trafficking.

Action Plan for Government Initiatives from 2003 to 2005 against Forced

Marriages, Semi-forced Marriages and Arranged Marriages, August 2003

The Action Plan is intended to prevent forced marriages and counter family

reunification based on arranged marriages, to contribute to improved

integration and equality of the sexes, to contribute to greater focus on the

right of ethnic minority youths to decide themselves on their future spouse,

and to communicate knowledge on focus areas to doctors, social workers,

visiting nurses, teachers, educationalists and other professionals who get

into contact with ethnic minorities.

Report from the Inter-Ministerial Working Group on Female Circumcision,

January 2003

The Working Group was entrusted with the tasks to examine the duties and

potential actions of professionals in connection with female circumcision

(or female genital mutilation), to analyse existing legislation in the area and

to assess the need for new initiatives.

Action Plan to Combat Trafficking in Women

In December 2002 the Government published a comprehensive Action Plan

against trafficking in women. The Action Plan suggests specific activities

intended to support the victims of trafficking in women and to prevent

trafficking in women.


Available in Danish at

http://www.sm.dk/netpublikationer/2003/p1kvinde1001/forside.htm

Rights of the Child

Convention provisions: The International Convention on the Rights of the

Child (ICRC) and Article 24 of the ICCPR.

Council Directive 2000/78/EC of 27 November 2000 establishing a general

framework for equal treatment in employment and occupation (the

Employment Directive).

Articles 24 and 32 of the Charter of Fundamental Rights of the European

Union.

1. Bills

Title:

Draft Bill amending the Criminal Code (female circumcision)

Background:

The Institute is represented on the Jurisdiction Committee

(Jurisdiktionsudvalget) set up by the Minister for Justice to examine all

current provisions of the Criminal Code on jurisdiction in criminal

proceedings concerning criminal offences committed abroad. The

Committee has also been requested to provide an opinion on the above Bill.

The Committee has commented on the part of the Bill which concerns an

amendment of the Criminal Code provisions on jurisdiction in cases

concerning female circumcision and not the substantive contents. For this

reason the Institute would only mention the human rights concerns arising

from the substantive contents of the Bill, that is, section 1(iv) of the Bill,

which expands the Criminal Code with a new provision, section 245a, and

otherwise refer to the comments made by the Jurisdiction Committee to the

other provisions of the Bill.

Human rights:

Female circumcision (or female genital mutilation) must be considered a

traditional rite that violates the physical integrity of women and girls in a

way that is contrary to the fundamental human right of dignity.

The physical integrity is protected by several provisions in international

and regional human rights instruments.

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The prohibition of cruel, inhuman or degrading treatment has been laid

down in Article 3 of the European Convention on Human Rights and

Article 7 of the International Covenant on Civil and Political Rights, and in

the International Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment.

Protection of the human body also follows from the provision on respect

for private life laid down in Article 8 of the European Convention on

Human Rights and Article 17 of the International Covenant on Civil and

Political Rights.

Special protection of children against circumcision is laid down in Article

24(3) of the International Convention on the Rights of the Child, which

reads: “States Parties shall take all effective and appropriate measures with

a view to abolishing traditional practices prejudicial to the health of

children.”

Assessment by the Institute:

The Institute considers it positive that efforts are now taken to protect girls

and women against circumcision.

It is anticipated, however, that some of the girls involved in future cases

against their parents or other close relatives concerning violation of the

proposed section 245a of the Criminal Code might not have turned 18 years

when the matter is investigated and/or an indictment is preferred.

In such situation the girl or young woman will have to stand both a medical

examination, which might in itself – depending on circumstances – be

considered a violation of their integrity, criminal proceedings against her

parents or other close relatives, and – in case a judgment is passed –

separation from her parents and temporary splitting up of the family. In

addition to such ascertainable maltreatment, any subsequent social

consequences of criminal proceedings concerning circumcision to both the

girl/woman affected and her family, e.g. exclusion from their social or

cultural group, should not be disregarded. The Institute finds that the

seriousness of such maltreatment becomes even more apparent in

situations where, because of the rule on public prosecution, the authorities

are under an indirect duty to interfere when they become suspicious that

circumcision has taken place or is being planned and therefore initiate an

investigation and report the matter to the police.


In such situations it is crucial to the girl or young woman that the best

interest of the child will be considered in connection with the

proportionality assessment.

Since the provision is not gender neutral, men who belong to a community

that carries out circumcision for cultural or religious reasons are prevented

from reporting an act which they deem is a violation of a person’s integrity,

either in itself or because of its consequences.

For this reason the Institute would propose a gender neutral wording of the

provision so that any act of genital mutilation without consent is made

criminal.

In terms of terminology, the Institute finds that the wording of the proposed

section 245a should reflect that the abusiveness and cruelty of female

genital mutilation amounts to maltreatment of women’s physical and

mental integrity. The word giving the best description of such maltreatment

is not circumcision, as used in the Danish version of the Bill, but genital

mutilation.

References:

Act No. 386 of 28 May 2003.

Entry into force: 31 May 2003.

Bill No. L 183, introduced in writing on 12 March 2003: Supplement A, column 5548.

The Bill as adopted: Supplement C, column 398.

Draft Bill amending the Criminal Code (female circumcision), distributed as an enclosure to

the consultation papers of 18 December 2002 from the Ministry of Justice.

Reply of the Institute of 22 April 2003, prepared by Birgitte Kofod Olsen.

Title:

Draft Bill amending the Aliens Act and the Integration Act (examination

of cases relating to unaccompanied minors seeking asylum)

Background:

Current practice: The legal basis for issuing refugees with a residence

permit on the basis of an application for residence pursuant to section 7 of

the Aliens Act can be characterised as a legal right. This means that a

foreigner will become eligible for a residence permit immediately when he

or she is recognised as a Convention refugee, or a B refugee, cf. section 7(1)

and (2). This is an absolute right, which cannot be modified or deviated

from by an administrative decision (unless a third country can serve as the

first country of asylum, cf. section 7(3)).

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The Institute deems that the current practice where the immigration

authorities have consistently refrained from examining applications from

unaccompanied under-age asylum-seekers on their merits is not

compatible with section 7 of the Aliens Act. According to the wording of

this provision it does not authorise the refusal of residence permits to

minors who may be eligible for such a permit merely by omitting an

examination of the merits of the application. On page 8 of the explanatory

notes it is said that children under 12 years and certain children of more

than 12 years of age will be granted residence under section 9c(1) of the Act

and that in such cases their application for asylum is deemed to have

lapsed. This is not in line with the nature of section 7, as it is a provision

stipulating a legal right.

Human rights:

Access to an asylum procedure and recognition of refugee status.

International standards:

It is generally recognised that, pursuant to the Convention relating to the

Status of Refugees (the Geneva Convention), a person must be recognised

as a refugee as soon as the conditions of Article 1(A) have been satisfied

(and provided that such person is not excepted under Articles 1(D) to 1(F)

of the Convention). A person’s recognition as a refugee is therefore not

subject to recognition by a state. Recognition as a refugee by a national

forum only has a declarative, and not constitutive, effect. Naturally, this

also applies to unaccompanied minors.

The right to apply for asylum and have the merits of such application

examined to determine a person’s asylum status follows directly from

Article 33 of the Geneva Convention. It should also be noted that the

Convention has no special provisions governing the determination of

children’s refugee status.

The UNHCR Handbook on Procedures and Criteria for Determining

Refugee Status, which is surprisingly not mentioned in the explanatory

notes of the Bill, lists various criteria for the examination of asylum

applications from unaccompanied minors in paragraphs 213-219. The

Handbook presupposes, in accordance with the system of the Geneva

Convention, that this group of persons should not be prevented from

determination of their application for asylum. The Guidelines of the

Handbook mainly describe the problem related to the determination of


whether a minor can be deemed to have a well-founded fear of persecution

within the meaning of the Geneva Convention, and examiners are

recommended in the Handbook to request the assistance of experts for the

determination of refugee status.

On page 29 of the explanatory notes of the Bill it is established in relation

to Article 22 of the International Convention of the Rights of the Child that

States Parties shall provide appropriate protection and humanitarian

assistance (to children seeking refugee status).

This is correct indeed. However, Article 22(1) continues by stating that the

States Parties shall take appropriate measures to ensure that children

seeking refugee status enjoy the rights set forth in the Convention and other

international human rights or humanitarian instruments. This must be

compared with Article 41 of the Convention on the Rights of the Child,

stipulating that nothing in the Convention “shall affect any provisions

which are more conducive to the realization of the rights of the child and

which may be contained in (...) [i]nternational law in force for that State”,

which naturally includes the Geneva Convention.

Children’s right to asylum is also confirmed by paragraph 6 of the UNHCR

Guidelines on Policies and Procedures in dealing with Unaccompanied

Children Seeking Asylum and Article 4 of European Council Resolution on

unaccompanied minors who are nationals of third countries. Both

provisions stipulate, as mentioned on page 30 of the explanatory notes of

the Bill, that all children should be entitled to apply for asylum. It would

be obvious to assume that the provisions are intended to ensure that

children seeking refugee status have their application examined on its

merits. The right to apply for asylum would not be worth very much if the

application was not examined.

Accordingly, it must be deemed quite indisputable that unaccompanied

minors can also have refugee status and be entitled to an examination of

the merits of their application, possibly in connection with an adapted

procedure designed to meet the special needs to be accommodated out of

consideration for the child.

Assessment by the Institute:

The Institute is satisfied that the Bill suggests several improvements of the

circumstances of unaccompanied children seeking refugee status, but it is

concerned that a consequence of the Bill is that asylum applications from

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children under 12 years and certain children under 15 years will not be

examined on their merits from the outset. To obtain better compatibility

with the international obligations and standards, the Institute recommends

that the scheme be structured so that the immigration authorities will carry

out asylum procedures at their own initiative, without minors necessarily

having to expressly renew their applications.

References:

Act No. 60 of 29 January 2003.

Entry into force: 1 April 2003.

Bill No. L 23, introduced in writing on 2 October 2002: Supplement A, column 425.

The Bill as adopted: Supplement C, column 237.

Draft Bill amending the Aliens Act and the Integration Act (examination of cases relating to

unaccompanied minors seeking asylum), distributed as an enclosure to the consultation

papers of 20 September 2002 from the Ministry of Refugee, Immigration and Integration

Affairs.

Reply of the Danish Centre for Human Rights of 1 October 2002, prepared by Kim U Kjær.

Title:

Report of the Ministry of Justice on criminal proceedings concerning

sexual abuse of children (Report No. 1420)

Background:

Report No. 1420 on criminal proceedings concerning sexual abuse of

children suggests that the suspect/person charged shall no longer be

entitled to monitor the video interviewing of a child in sexual offence

proceedings, but afterwards he or she shall be entitled to familiarise himself

or herself with the interview and request a re-examination of the child. The

Bill proposes express statutory authority for assigning counsel for the

defence of a suspect or person charged or a person who may later be

suspected or charged, and for using video recordings as evidence during

the trial.

Human rights:

As regards the rights of the suspect, the right to use video recordings seems

to give rise to human rights concerns for the accused in criminal

proceedings, cf. the right as guaranteed by Article 6(1), cf. the right to crossexamine

witnesses as guaranteed by paragraph (3)(d), of the ECHR.

Neither the accused nor his or her counsel will have the right to crossexamine

the child as a witness in court or before the trial under the

proposed scheme.


So far it has followed from Convention practice in relation to Article 6(3)(d),

cf. paragraph (1), that the accused or his or her counsel has been given the

opportunity to cross-examine the witness whose evidence the prosecutor

wants to present in connection with the trial. If counsel for the defence were

given the opportunity to examine such witness in the trial court of primary

jurisdiction or prior to such trial, Article 6(3)(d) would be found to have

been complied with because to a great extent counsel and the accused are

identified with each other. Still the fact that the accused was not present at

the cross-examination of the witness will be taken into consideration at the

overall assessment of whether the right to a fair trial, as guaranteed by

Article 6(1), cf. paragraph (3)(d), has been safeguarded at the relevant trial.

It should be recalled that the European Court of Human Rights will always

make an overall assessment of the concrete circumstances of a case in

connection with an application to the Court; but the Court will not review

the Danish scheme as such. The Court will always review the application

of the scheme in a specific case as seen in the light of the proceedings in

general.

Assessment by the Institute:

The Danish Institute for Human Rights finds that the procedure proposed

in Report No. 1420 in connection with criminal proceedings concerning

sexual abuse of children offers sufficient protection of the human rights of

both the child and the accused. Generally the proposed scheme seems not

to give rise to any human rights concerns. However, the risk of violations

cannot be excluded unless the national authorities, including the courts, are

very careful and focus on Article 6 of the ECHR in all matters. When a child

is not produced as a witness in court during the trial, the national court

must make sure that the defence has previously been given the opportunity

to have relevant questions posed and maybe even request a re-examination.

Moreover the national courts must carefully assess the evidence produced,

including the child’s statement, to clarify whether the evidence is sufficient.

It will presumably also be necessary to have other evidence supporting the

child’s statement.

References:

Consultation request from the Ministry of Justice of 25 September 2002 concerning Report of

the Ministry of Justice on criminal proceedings concerning sexual abuse of children (Report

No. 1420).

Reply of the Danish Centre for Human Rights of 26 November 2002, prepared by Birgitte

Kofod Olsen.

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Title:

Draft Bill amending the Criminal Code, the Adoption Act and the

Administration of Justice Act (child pornography, sexual exploitation of

children and the sale of children)

Background:

The Bill is intended to implement such amendments to the Criminal Code

and the Adoption Act as are necessary to enable Denmark to ratify the

Optional Protocol to the Convention on the Rights of the Child on the sale

of children, child prostitution and child pornography. Denmark signed the

Optional Protocol on 7 September 2000.

Another intention of the Bill is to implement certain amendments to the

Criminal Code. If not amended, Denmark cannot adopt the European

Framework Decision on combating the sexual exploitation of children and

child pornography.

Furthermore, the Bill entails some amendments to the Administration of

Justice Act concerning criminal proceedings with child witnesses, the

purpose being to implement the recommendations of the Working Group

of the Ministry of Justice on criminal proceedings concerning sexual abuse

of children, cf. Report No. 1420/2002.

Human rights:

Article 10 of the ECHR and Article 19 of the ICCPR.

Assessment by the Institute:

The Institute considers it positive that the Government takes the requisite

initiatives for its ratification of the above-mentioned Optional Protocol. The

Institute has reviewed the Bill, and the intended contents do not give rise

to concern. In this connection the Institute also assessed the Bill in the light

of Article 10 of the ECHR and Article 19 of the ICCPR, according to which

the general rule is that everyone has freedom of expression. The restrictions

of the freedom of expression resulting from the Bill do not exceed the scope

of the exceptions of the second paragraph of these two Articles in the

Institute’s point of view. According to these two second paragraphs, the

freedom of expression may be restricted if necessary in a democratic society

for the prevention of crime, for the protection of health and morals and for

other similar reasons. The Institute finds, however, that it would be an

advantage if a similar assessment were included in the explanatory notes.


The Institute also finds that there could be reasons to reconsider whether

the expression “reproduction” fully covers the incidents that the legislator

wants to make criminal, cf. the proposed sections 230 and 235(1) and (2) of

the Criminal Code.

The Institute finds that this expression implies that something already

exists (possibly just in the form of an image). The explanatory notes state,

however, that it is also intended to criminalise the images stemming only

from the originator’s own imagination, the so-called fictive child

pornography, which is mainly computer generated pictures of non-existing

children.

References:

Act No. 228 of 2 April 2003.

Entry into force: 4 April 2003.

Bill No. L 117, introduced in writing on 27 February 2002: Supplement A, column 2654.

The Bill as adopted: Supplement C, column 289.

Draft Bill amending the Criminal Code, the Adoption Act and the Administration of Justice

Act (child pornography, sexual exploitation of children and the sale of children), distributed

as an enclosure to the consultation papers of 28 October 2002 from the Ministry of Justice.

Reply of the Danish Centre for Human Rights of 3 December 2002, prepared by Ida Elisabeth

Koch.

2. Danish court decisions

Eastern and Western High Courts:

No judgments with reference to the International Convention on the Rights

of the Child have been published in the period under review.

Supreme Court:

No judgments with reference to the International Convention on the Rights

of the Child have been published in the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the rights of the child have been published in the

period under review.

4. Opinions of and concrete cases before the Committees

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Relevant Committees:

The Human Rights Committee (HRC) and the Committee on the Rights of

the Child (CRC).

Opinions:

Human Rights Committee

The Committee has not examined Denmark in the period under review.

Committee on the Rights of the Child

The Committee has not examined Denmark in the period under review.

Concrete cases:

Human Rights Committee

The Committee has not considered any complaints against Denmark in the

period under review.

5. Government initiatives

Submission of the third periodic report to the Committee on the Rights of the Child

Denmark submitted its third periodic report to the Committee on the

Rights of the Child on 18 August 2003. The report describes the initiatives

taken in Denmark during the past five years to safeguard the rights

following from the Convention on the Rights of the Child. The report covers

the period 1998-2002, but includes some developments until the summer

of 2003, too.

The report has a separate part on the conditions of children in Greenland.

Ratification of the Optional Protocol to the Convention on the Rights of the Child

on the sale of children, child prostitution and child pornography

On 24 July 2003, Denmark ratified the Optional Protocol of 25 May 2000 to

the Convention on the Rights of the Child on the sale of children, child

prostitution and child pornography. The Optional Protocol supplements

the provisions of the Convention on the Rights of the Child by fixing

detailed rules criminalising infringement of children’s rights pertaining to

the sale of children, child prostitution and child pornography.

Action Plan to Combat Sexual Abuse of Children, August 2003

The Action Plan is intended to further strengthen the initiatives against

sexual abuse of children. The Action Plan lists previous initiatives and


assesses, on the basis of the current efforts and knowledge, which fields

need follow-up or enhanced initiatives, or gathering of more know-how.

Available in Danish at http://www.jm.dk/image.asp?page=image&objno=70300

Rights of the Disabled

Convention provisions: Article 14 of the ECHR.

Council Directive 2000/78/EC of 27 November 2000 establishing a general

framework for equal treatment in employment and occupation (the

Employment Directive).

United Nations Standard Rules on Equalization of Opportunities for

Persons with Disabilities.

Article 26 of the Charter of Fundamental Rights of the European Union.

1. Bills

Title:

Comments on or proposed themes for legislative proposals for revision

of the Psychiatry Act planned for the parliamentary year 2005-06, to be

introduced to Parliament before 1 October 2003

Background:

In the response of the Danish Government to the Council of Europe’s

Committee for the Prevention of Torture (CPT) submitted on 2 June 2003,

the Ministry of the Interior and Health stated that the issue of the use of

restraint in psychiatric establishments, including the use of immobilisation,

will be taken into consideration at the revision of the Danish Psychiatry Act

in 2005-06.

Human rights:

Article 3 of the ECHR.

Assessment by the Institute:

The Danish Institute for Human Rights urges the Ministry to launch

temporary measures to discontinue the use of long periods of

immobilisation. The CPT has pointed out that long periods of restraint

cannot have any medical justification, and in the CPT’s view it amounts to

ill-treatment of such patients. Thus, it is likely that the European Court of

Human Rights would also find that long periods of restraint is contrary to

good medical treatment practices and would therefore constitute inhuman

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and degrading treatment contrary to Article 3 of the European Convention

on Human Rights. The Danish Government is obliged to take the necessary

initiatives to make sure that such violation does not occur.

In the Danish response to the CPT concerning the use of immobilisation,

involuntary medication is set out as the alternative to immobilisation. It

should be noted in this connection that the CPT suggested that increased

staffing levels and training of staff at the psychiatric units could probably

counter the feeling among staff of the need to use restraint.

The Institute also calls for inclusion of a prohibition of the use of forced

medical examination and treatment constituting serious interferences as

one of the themes to be considered at the next revision of the Psychiatry

Act. In this connection particularly treatment suspected of having a

permanent effect on memory or of personality changes must be subject to

consent from the patient.

The Norwegian Act of 2 July 1999 No. 62 on Establishment and

Implementation of a Mental Health System could be a source of inspiration.

By this Act, Norway has restricted its use of intrusive or restraining

measures, like electric convulsive treatment, to treatment of consenting

patients; although the Act also gives a very limited power to effect

compulsory treatment, such as electric convulsive treatment, in cases

where the strict conditions of necessity have been satisfied.

During the summer of 2003, new statistical material on the use of restraint

in psychiatric establishments was published. This material shows great

regional differences in the use of restraint at psychiatric units and in the rate

of successful complaints to the 15 local patients’ boards of complaints. The

figures are a reminder of the fallibility of the health system and can be taken

to favour a prohibition against measures of restraint which may amount to

ill-treatment and lead to permanent harm, such as long periods of

immobilisation and compulsory medication and electric convulsive

treatment.

As regards the need for new standards for the use of shielding psychiatric

patients, the Danish Ministry of the Interior and Health stated in its

response to the CPT that the Ministry would consider whether new

legislation in the field is needed. The Institute would emphasise in this

connection that the use of certain kinds of personal and physical shielding

of non-consenting patients may be an infringement of such patients’


personal integrity and freedom, as protected by Article 5 of the European

Convention on Human Rights and other human rights instruments.

Infringement of personal integrity and freedom is deemed particularly

serious, and therefore the European Court of Human Rights has stipulated

a requirement for a substantive law provision that must conform to certain

legal quality standards. To obtain the best procedural safeguards and avoid

any arbitrariness in this field, the Danish Institute for Human Rights

recommends the introduction of new rules at the revision of the Psychiatric

Act at the latest, stipulating situations where shielding is a measure of

restraint and the conditions for using such measure.

Moreover, the Institute would recommend that in future the Ministry

should circulate its preliminary reports to the CPT and other human rights

commissions to organisations for psychiatric patients or their significant

others before drafting Denmark’s final response. The Institute has noted

that Denmark’s response to the CPT of June 2003 was circulated to the

Association of Danish Psychiatrists (Dansk Psykiatrisk Selskab) among

others, but not to any organisations of patients or their significant others.

Finally, the Institute would appreciate an opportunity to contribute to the

Government responses on the implementation of human rights standards

in Denmark.

References:

Request for comments on or proposed themes for legislative proposals for a revision of the

Psychiatry Act, sent by letter of 3 July 2003 from the Ministry of the Interior and Health.

Consultation reply of the Institute of 22 September 2003, prepared by Birgitte Kofod Olsen and

Maria Ventegodt Liisberg.

2. Danish court decisions

Judgment of the District Court of Fredericia of 1 October 2003

The proceedings concerned two teachers at a school for the deaf who taped

a pupil’s mouth shut because the pupil disturbed classes by screaming

continuously. The teachers were acquitted of violation of section 244 of the

Criminal Code (on common assault). The judgment has been appealed to

the High Court.

Eastern and Western High Courts:

No judgments concerning the rights of the disabled have been published

in the period under review.

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Supreme Court:

No judgments concerning the rights of the disabled have been published

in the period under review.

3. Opinions of the Parliamentary Ombudsman

File No.: 2002-2685-522

It is expected that the case will be quoted in the 2003 Report of the

Parliamentary Ombudsman, which will presumably be published in

September 2004.

A, which is a Danish NGO, complained to the Parliamentary Ombudsman

of the way that the two national television channels, the DR and TV 2,

handle their public service obligations towards the deaf. In that connection

the organisation referred to section 4(12) of Executive Orders Nos. 1345 and

1346 of 18 December 2000 on Bylaws of the DR and TV 2, respectively,

imposing on the DR and TV 2 a duty to improve the possibilities of the

disabled to make use of their public services by employing new

technologies, such as subtitling Danish television programmes.

A stated in this connection that the DR and TV 2 have not yet managed to

improve the possibilities of the disabled to watch live Danish broadcasts

like those which followed in the wake of the terror attack on 11 September

2001 and the live broadcasts during the election campaign leading up to the

general election in Denmark on 20 November 2001. The DR and TV 2 have

previously stated by letter to the National Handicap Council (Det Centrale

Handicapråd) that at present it is not technically feasible to subtitle live

broadcasts, but they are in dialogue with the Ministry of Culture about the

development of a Danish speech reproduction system. The DR and TV 2

also stated that they have opted not to have sign language interpreters in

the picture because it would appear highly distracting to non-hearing

impaired viewers.

A also pointed out in its complaint that it would probably take many years

before the digital speech reproduction system is ready for use in Denmark,

and that the disabled/deaf will only have access to live broadcasts if there

is sign language interpretation.

In support of this submission, A referred to the United Nations Standard

Rules on Equalization of Opportunities for Persons with Disabilities, in

particular rule 5(b)(9), according to which media, especially television and


adio, should make their services accessible to persons with disabilities.

The organisation also referred to Article 3 of the First Protocol to the

European Convention on Human Rights, according to which the

Contracting Parties undertake to hold free elections at reasonable intervals

by secret ballot, under conditions which will ensure people’s right to freely

express their opinion in the choice of the legislature.

The Parliamentary Ombudsman found that neither the duty of the DR and

TV 2 to provide public service nor the United Nations Standard Rules on

Equalization of Opportunities for Persons with Disabilities imposed on the

television stations a duty to provide simultaneous sign language

interpretation of news broadcasts.

As regards the European Convention on Human Rights and its pertaining

Protocols, the Ombudsman emphasised that apparently the European

Court of Human Rights has never delivered any judgments citing Article 3

of the First Protocol in cases similar to this one. On this basis the

Ombudsman found himself unable to criticise the claim of the Ministry of

Culture that Article 3 of the First Protocol does not impose a duty on the

DR and TV 2 to provide simultaneous interpretation of election

programmes.

The Ombudsman also said that the DR and TV 2 have cooperated, and are

cooperating, with associations for the disabled and others on improving the

access of the hearing impaired to information through television.

On that basis the Parliamentary Ombudsman decided not to initiate a

thorough ombudsman investigation of the matter. The Ombudsman

justified his decision by stating that even a thorough investigation of the

matter by the Ombudsman did not seem to help A at present to have sign

language interpretation of relevant news programmes at the DR and TV 2.

In conclusion the Ombudsman said that, on the basis of the evidence

provided, it was not apparent on what basis the DR and TV 2 founded their

assumption that sign language interpretation of live broadcasts would

seem highly distracting to non-hearing impaired viewers. In connection

with the case it was also mentioned that in other countries certain

programmes are interpreted into sign language. The Ombudsman found

on that basis that it would be expedient to remit A’s complaint to the

Ministry of Culture as a request from the organisation for information from

the Ministry of Culture, the DR and/or the TV 2 about whether any viewer

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surveys had been carried out (maybe in other countries) about the extent

to which non-hearing impaired viewers were distracted by simultaneous

sign language interpretation in the picture and whether such

inconvenience was temporary.

Inspections – equal treatment of the disabled

Inspection of the Town Hall of Sorø Municipality on 13 June 2003.

Inspection of the University of Southern Denmark (Syddansk Universitet)

in Odense on 15 October 2002.

The Ombudsman’s reports on the inspections are available in Danish at

the website of the Ombudsman’s office:

http://www.ombudsmanden.dk/index.asp?art=indhold.htm&id=indhold&fold=i

nspektioner

4. Judgments of the European Court of Human Rights

No judgments concerning the rights of the disabled have been published

in the period under review.

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The Committee on Economic, Social and Cultural Rights (CESCR), the

Committee against Torture (CAT), the European Committee of Social

Rights (ECSR) and the European Committee for the Prevention of Torture

and Inhuman or Degrading Treatment or Punishment (CPT),

Opinions:

Committee on Economic, Social and Cultural Rights

The Committee has not published any conclusions concerning Denmark in

the period under review.

Committee against Torture

The Committee has not published any conclusions concerning Denmark in

the period under review.

European Committee of Social Rights

The Committee published its conclusions XVI-2 to the 22 nd Danish report


concerning Articles 1(4), 2, 3, 4, 9, 10 and 15 of the Charter and Articles 1,

2, 3 and 4 of the 1988 Additional Protocol. The assessment contains 21

conclusions. The report is summarised in the section on Economic, Social

and Cultural Rights. This section only summarises the conclusion in respect

of the rights of the disabled.

Article 15(2): Right of physically or mentally disabled persons to vocational

training, rehabilitation and social resettlement – placement arrangements for

disabled persons

The Committee observed that Denmark has no measures protecting

employees with disabilities from dismissal, nor are employers under an

obligation to continue to employ a person who becomes disabled following

an occupational injury or disease.

The Committee considers that the legal situation of persons with

disabilities requires anti-discrimination legislation. The Committee

referred to Council Directive 2000/78/EC of 27 November 2000 on the

establishment of a framework for equal treatment in employment and

occupation (the Employment Directive), which requires Member States to

adopt measures in the field of employment and training protecting, inter

alia, persons with disabilities. The Committee asked the Danish

Government to be kept informed of all developments in the

implementation of the Directive. Meanwhile it concluded that Denmark is

not in conformity with the Charter on this point.

The Committee also recalled that employees performing production

oriented work in sheltered workshops were not subject to the usual terms

and conditions of employment and that their pay was much lower than that

in the open working environment (the difference varying between 5% and

30%). The Committee noted that most persons in sheltered workshops are

in receipt of a pension and those who are not receive the lowest hourly rate

under the collective agreement for the area in question. Nevertheless, the

Committee noted that the right to fair remuneration and just conditions of

employment apply to all workers whether they are employed in sheltered

facilities or in the open labour market. States have a responsibility to ensure

that wages are fair, and the Committee found that the differences between

the wage rates in sheltered workshops and those in the open working

environment cannot be considered fair. Accordingly, the low wage level for

persons in sheltered workshops does not comply with the Charter.

The Committee wanted more information on how the rates of pay are

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determined. Furthermore, the Committee wished to know to what extent

trade unions are involved in sheltered employment and what percentage

of the workforce in these workshops belong to trade unions.

European Committee for the Prevention of Torture and Inhuman or Degrading

Treatment or Punishment

The Committee has not published any conclusions concerning Denmark in

the period under review.

Concrete cases:

Committee against Torture

The Committee has not considered any complaints against Denmark in the

period under review.

6. Government initiatives

Disability No Barrier, an action plan for disabled persons’ use of information

technology and telecommunications equipment

In January 2003 the Minister for Science, Technology and Innovation

published the Government’s action plan for disabled persons’ use of

information technology and telecommunications equipment.

Rights of Ethnic Minorities

Convention provisions: The Framework Convention of the Council of

Europe for the Protection of National Minorities, the European Charter for

the Regional or Minority Languages and Article 27 of the ICCPR.

Article 22 of the Charter of Fundamental Rights of the European Union.

1. Bills

No bills concerning the rights of ethnic minorities have been introduced in

the period under review.

2. Danish court decisions

The Thule case

The Supreme Court judgment in the proceedings instituted by the Thule

tribe in Greenland against the Danish Government for compensation for

forced removal will presumably be delivered in November 2003 (case No.

489/1999 civil appeal and case No. 490/1999 civil appeal). The case is an


appeal of the Eastern High Court judgment of 20 August 1999, case No.

3426/96, 3 rd Division, in which the Thule tribe and its descendants were

awarded compensation for part of the suffering caused by their forced

removal due to an enlargement of the U.S. Air Force Base in North East

Greenland in 1953.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the rights of ethnic minorities have been published

in the period under review.

4. Opinions of and concrete cases before the Committees

Relevant Committees:

The Human Rights Committee (HRC), the Advisory Committee on the

Framework Convention for the Protection of National Minorities and the

Expert Committee of the European Charter for the Regional or Minority

Languages.

Opinions:

Human Rights Committee

The Committee has not published any conclusions concerning Denmark in

the period under review.

Advisory Committee on the Framework Convention for the Protection of National

Minorities

The Committee has not published any conclusions concerning Denmark in

the period under review.

Expert Committee of the European Charter for the Regional or Minority

Languages

The Committee has not published any conclusions concerning Denmark in

the period under review.

Concrete cases:

Human Rights Committee

The Committee has not considered any complaints against Denmark in the

period under review.

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132

5. Government initiatives

White Paper on Socially Vulnerable Greenlanders in Denmark, January 2003

This White Paper is a mapping of the nationwide social efforts currently

made in relation to socially vulnerable Greenlanders.

Available in Danish at

http://www.sm.dk/netpublikationer/2003/p3hvid0201/hvidbog.pdf

The German Minority, the Structure Commission (Strukturkommissionen)

On 1 October 2002 the Government set up the Structure Commission,

which is to make recommendations for the future organisation of the public

sector. The Commission is to complete its work before the end of 2003.

The party representing the German minority in southern Jutland, the

Schleswig Party, has not been represented in the Danish Parliament since

1983. The party is represented in several local authorities in southern

Jutland, but at present it only has one member on the Southern Jutland

County Council. If counties and municipalities are to be merged in

connection with a future restructuring of local government, there is a risk

of reducing the influence of the German minority in Denmark because the

Structure Commission has suggested the abolition of the County of

Southern Jutland as an independent county and a merger, in full or in part,

with other counties of that region.

6. Miscellaneous

The Local Authority of Helsingør has set up a scheme of special education

for pupils with a high rate of unauthorised absence from school. This

educational scheme involves both teachers and a social worker. These

pupils do not have any general learning difficulties; they are merely offered

enrolment in the scheme because of their low attendance.

The scheme is a voluntary offer to parents. The children enrolled in the

scheme at present are all Roma, and they are divided into three classes with

about 10 pupils each.

On 3 December 2002, the association Romano and others filed a complaint

with the Supervisory Council of Frederiksborg County (Tilsynsrådet for

Frederiksborg Amt) about the establishment of these special classes by

Helsingør Local Authority. One of the reasons stated by the association in


support of its claim is that the establishment of these Roma classes is a

circumvention of the applicable Danish rules on remedial classes. The

association also finds that the Roma children are discriminated on the basis

of their ethnic origin.

The complaint is still pending before the Supervisory Council.

Rights of Refugees

Convention provisions: The Convention Relating to the Status of Refugees

(the Geneva Convention).

Articles 18 and 19 of the Charter of Fundamental Rights of the European

Union.

1. Bills

Title:

Draft Bill amending the Aliens Act (reform of activation and education

at asylum centres and reform of the system governing the payment of

cash allowances to asylum-seekers and others)

Background:

To a great extent the Bill is a follow-up on a report prepared in October 2002

by a working group set up by the Ministry of Integration. This report

recommends various methods to enhance activation and education at

asylum centres, including the possibility to reduce or refuse payment of

pocket money to asylum-seekers and increased use of detention as a means

of motivating the asylum-seekers to attend activation and education

schemes. The Bill also proposes extended possibilities of exchanging

sensitive personal data.

Human rights:

Among the convention provisions that are binding to Denmark, Article 5

of the ECHR on detention and Article 8 of the ECHR on the right to respect

for private life are particularly relevant.

Assessment by the Institute:

The Danish Institute for Human Rights finds that most of the problems

intended to be solved by this draft Bill could be solved instead by reducing

the long time it takes to process applications for asylum. As regards the

extended right to exchange sensitive personal data, the Institute

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134

recommends consent from the relevant person. Finally the Institute would

mention that the extended right to detain asylum-seekers is hardly

compatible with the UNHCR recommendations.

References:

Act No. 292 of 30 April 2003.

Entry into force: 1 July 2003.

Bill No. L 157, introduced in writing on 29 January 2003: Supplement A, column 4010.

The Bill as adopted: Supplement C, column 342.

Draft Bill amending the Aliens Act (reform of activation and education at asylum centres and

reform of the system governing the payment of cash allowances to asylum-seekers and

others), distributed as an enclosure to the consultation papers of 20 December 2002 from the

Ministry of Refugee, Immigration and Integration Affairs.

Reply of the Institute of 23 January 2003, prepared by Kim U Kjær.

Title:

Draft Bill amending the Aliens Act (stricter measures for return,

streamlining of the examination of applications for residence permits on

humanitarian grounds, implementation of the Eurodac Regulation, etc.)

Background:

Most of the Bill is a follow-up on a report prepared in 2002 by a working

group set up by the Ministry of Integration to consider streamlining of

measures to return foreigners who do not leave Denmark voluntarily when

their applications for asylum have been refused. Some of the proposed

initiatives are: better counselling and information about their duty to leave

the country, the option to get DKK 3,000 for resettlement in their country

of origin, withdrawal of their board allowance, etc. (the so-called ‘lunch box

scheme’), and increased use of detention and the duty to report. Significant

parts of the new return procedure are merely a somewhat different use of

the current rules.

Human rights:

Among the convention provisions that are binding to Denmark, Article 5

of the ECHR on detention and Article 8 of the ECHR on the right to respect

for private life are particularly relevant.

Assessment by the Institute:

The Danish Institute for Human Rights finds that the proposed procedural

change to the lodging of applications for residence on humanitarian

grounds does not give rise to concern. This also applies to the extended

right to take and exchange fingerprints and photos.


The Institute finds, however, that the right of the police to refuse financial

assistance should be subject to an appeals procedure to another

administrative authority in accordance with the usual system under

Danish law, and that asylum-seekers whose applications are examined as

manifestly unfounded should not, as a general rule, be denied such

financial assistance. The Institute doubts that extended use of the ‘lunch

box scheme’ will have the desired effect, but recommends the introduction

of statutory provisions on stay of enforcement in case an asylum-seeker

complains of being put on the ‘lunch box scheme’. Also decisions on

transfer to the Sandholm Centre (reception centre with detention facilities)

should be subject to an appeals procedure in the Institute’s point of view.

Finally, the Institute considers it doubtful whether the proposed extended

right to detain asylum-seekers is compatible with the UNHCR

recommendations.

References:

Act No. 291 of 30 April 2003.

Entry into force: 1 May 2003.

Bill No. L 156, introduced in writing on 29 January 2003: Supplement A, column 3946.

The Bill as adopted: Supplement C, column 338.

Draft Bill amending the Aliens Act (stricter measures for return, streamlining of the

examination of applications for residence permits on humanitarian grounds, implementation

of the Eurodac Regulation, etc.), distributed as an enclosure to the consultation papers of 20

December 2002 from the Ministry of Refugee, Immigration and Integration Affairs.

Reply of the Institute of 23 January 2003, prepared by Kim U Kjær.

Title:

The European Commission’s amended proposal for a Council Directive

on minimum standards on procedures in Member States for granting and

withdrawing refugee status

Background:

The proposed Council Directive stipulates procedural guarantees

throughout all stages of the asylum procedure. As an example, every

asylum-seeker should have the right to appeal first instance decisions, and

applicants must be notified of the essential developments in their case in a

language they understand. Specific guarantees for persons with special

needs, such as unaccompanied minors, have also been laid down.

The proposed Directive also provides minimum requirements regarding

the decision-making process. These requirements imply that the Member

States must introduce a three-instance system with a determining

authority, a reviewing body and an appellate court, that decisions must be

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136

made individually, objectively and impartially, that negative decisions

must state the reason for the decision, and that personnel of the

determining authority receive the necessary basic training and have access

to information of relevance to the asylum proceedings, including

information on countries of origin and the right to ask advice from experts

on particular issues.

Moreover the proposed Directive establishes common standards for the use

of the concepts “inadmissible cases”, “manifestly unfounded cases”, “safe

country of origin” and “safe third country”. The Member States’ use of

these concepts is optional, but if they opt to use them, such use must follow

the common standards.

Human rights:

Pursuant to the Convention relating to the Status of Refugees (the Geneva

Convention) it is a fundamental principle that a person must be recognised

as a refugee as soon as the conditions of Article 1(A) have been satisfied

(and provided that such person is not excepted under the exclusion or

limitation provisions of Article 1(C) and Articles 1(D) to 1(F) of the

Convention).

This is also fully in line with the definition of the concept of “refugee” in

Article 2(f) as “a person who fulfils the requirements of Article 1(A) of the

Geneva Convention”. This definition complies fully with the fact that

refugee status is personal and not subject to recognition by a state.

Recognition (or – for that matter – non-recognition) as a refugee by a

national forum only has a declarative, and not constitutive, effect.

Therefore it is also misleading when “refugee status” is defined in Article

2(g) as “the status granted by a Member State to a person who is a refugee

(...)”. According to the Geneva Convention, a state cannot “grant” a person

refugee status, but merely recognise a person’s refugee status, provided

that the conditions listed in the Convention have been met. In such case a

state may, by virtue of its national sovereignty, decide to grant

asylum/issue a residence permit. Moreover the definition is linguistically

unclear. How can a Member State grant refugee status to a person who is

(already) a refugee?

This incorrect understanding of the construction of the Geneva Convention

is also reflected in Article 2(k), even in two ways.


For one thing, a national authority cannot “withdraw the refugee status of

a person on the basis of Article 1(C) of the Geneva Convention”. The

authorities can ascertain that in the circumstances the status has lapsed, cf.

Article 1(C). And on that basis the authorities can cancel – or maybe more

correctly withdraw – an existing residence permit. But it does not make

sense to say that the authority should cancel a status that is related to the

person as such.

Secondly, Article 2(k) also concerns decisions “to withdraw the refugee

status of a person on the basis of (...) Article 33(2) of the Geneva

Convention”. This use of the concept is also unfortunate. The public policy

reservation in Article 33(2) authorises refoulement in certain specified and

qualified situations, but – contrary to the provisions of Article 1(C) of the

Convention – does not express a loss of the personal status of refugee, cf.

Article 1(A): A person expelled to persecution for a Convention reason with

reference to Article 33(2) is still a refugee within the meaning of the

Convention.

Similar considerations as mentioned above concerning withdrawal of

refugee status on the basis of Article 1(C) apply to the consideration in

Article 2(l) concerning “annulment”. An authority cannot withdraw the

refugee status of a person, just as it cannot “cancel the refugee status of a

person on the grounds that circumstances have come to light that indicate

that this person should never have been recognised as a refugee in the first

place”. In certain specified situations a person may be precluded from

refugee status in pursuance of Article 1(F) of the Convention or other

provisions. If it turns out later that a person recognised as a refugee by a

national authority is excepted by the Convention, the residence permit

previously granted to such refugee in pursuance of the relevant national

rules can be cancelled. But it is not compatible with the construction of the

Geneva Convention to claim that an authority should be in a position to

cancel a person’s refugee status.

By contrast, Article 38 of the proposed Directive establishes the principle

that asylum-seekers have the right to an effective remedy of law – a

construction apparently preferred by the European Commission to the

scheme proposed by the Council according to which the institution could

have been a ‘quasi-judicial body’, cf. the explanatory memorandum on

Article 38. The Institute disagrees with the viewpoints presented by the

European Commission. The Institute would have preferred a reviewing

body of an independent, quasi-judicial nature to be defined by the Member

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138

States, like the Danish Refugee Board (Flygtningenævnet). Such body

would make it possible to review this type of complaint subject to the

procedural guarantees provided by the framework of a specialist body

which – all other things equal – must be deemed better suited than the

ordinary courts of law to decide such matters, which are most often very

complicated.

The possibility of enforcing the contemplated return pending the

consideration of the complaint, which has, somewhat misleadingly, been

referred to as “expulsion” both in connection with the regular procedure,

cf. Article 39, and the accelerated procedure, cf. Article 40, must, given the

nature of things, be construed and administered subject to the principle of

non-refoulement, cf. Article 33 of the Geneva Convention. The provision

must also be seen in the light of the rule on the right to an effective remedy

of Article 13, cf. Article 3, of the ECHR, to which reference is also made in

the explanatory memorandum on Article 38 (but not on Articles 39 and 40).

In this connection reference is made to Recommendation No. R (98) 13 of

the Committee of Ministers to Member States on the Right of Rejected

Asylum Seekers to an Effective Remedy Against Decisions on Expulsion in

the Context of Article 3 of the European Convention on Human Rights of

18 September 1998. On the basis of Articles 3 and 13 of the ECHR, and

having regard to the case-law of the European Court of Human Rights in

relation to Article 13 in conjunction with Article 3 of the ECHR as it

concerns rejected asylum-seekers who face expulsion, this

Recommendation lists procedural guarantees that the Member States are

recommended to comply with in their legislation and practice. Having such

reference to practice, this Recommendation must be assumed to apply both

to asylum-seekers whose requests for refugee status have been rejected and

who now face expulsion, and to applicants who are expelled without any

examination of their application on its merits.

Therefore an effective remedy should be provided for any asylum-seeker

who is subject to expulsion to a country “about which that person presents

an arguable claim” that he or she risks ill-treatment as described in Article

3 of the ECHR, be it the country of destination or a third country to which

the applicant will be sent. A remedy is deemed effective when that

authority is judicial; or, if it is a quasi-judicial or administrative authority,

it is composed of members who are impartial and who have competence

both to decide on the existence of the conditions provided for by Article 3

of the ECHR and to grant appropriate relief. It is also a condition that the


emedy is accessible to the rejected asylum-seeker and that the execution

of the expulsion order is suspended until a decision is taken by the

competent authority. At this point the concern only relates to the question

of suspensive effect.

Accordingly, the provisions of Articles 39(2) and 40(1), under which the

Member States can keep in force rules on non-suspensive effect, or enact

such rules, must be construed as having the limitation – irrespective of the

wording of Articles 39(3) and 40(2) – that the courts must ex officio suspend

the execution of an order that has been appealed if the appeal must

otherwise be deemed ‘arguable’ within the meaning of Article 13. It will not

be discussed any further what this court-created concept implies.

Particularly in relation to the right to appeal decisions taken in the

accelerated procedure it should be noted that there seems to be no legal

justification for expelling an asylum-seeker until the court of law has ruled

in the case, particularly where it has been decided that the application will

not be admitted to examination on its merits in pursuance of Article

40(3)(a), cf. Article 25. An appeal might even in such cases very well be

‘arguable’ within the meaning of Article 13, see in this respect T.I. v. the

United Kingdom, application No. 43844/98, decision of 7 March 2000 (on

removal from the United Kingdom to Germany in pursuance of the rules

of the Dublin Convention). A court assessment might be of particular

relevance to decisions on return to ‘safe’ third countries without having

agreed on such return before, or even without any prior commitment, as

suggested by the proposal.

Finally, as regards Articles 39(4) and 40(3)(d) concerning situations

affecting the national security, etc., the Institute would mention that the

Court established by its decision in the 1996 Chahal case, and a couple of

other subsequent decisions, that the protection afforded by Article 3 of the

ECHR is absolute in the sense that even if the alien’s presence in the country

of residence is not conducive to public good for reasons of national security

and other reasons of a political nature this cannot justify disregard of the

guarantees afforded by Article 3. In this context it implies that an

application from an asylum-seeker deemed to pose such a threat as defined

by these provisions cannot for that reason be considered ‘non-arguable’ in

relation to Article 13 of the ECHR.

The Danish Institute for Human Rights has ascertained that the European

Commission’s amended proposal for a Council Directive on minimum

139

Rights of Refugees


Rights of Refugees

140

standards on procedures in Member States for granting and withdrawing

refugee status is tarnished by several linguistic ambiguities that make it

difficult to infer the actual meaning of the text. The proposal is also

characterised by an inadequate distinction between recognition as a

refugee and grant of residence permit. Furthermore, on several points the

proposal does not meet the relevant refugee and asylum standards that the

proposal otherwise pretends to observe. This mainly concerns matters such

as the right to remain in the territory of a country pending the asylum and

any appeals procedure, access to the services of an interpreter, the

opportunity to communicate with the relevant authorities in person,

information about the possibility to communicate with the United Nations

Commissioner for Refugees (UNHCR), judicial review of orders for

detention, removal to ‘safe’ third countries, and the right to an ‘effective

remedy’.

Note:

At the Justice and Home Affairs (JHA) Council meeting on 5-6 June 2003, political agreement

was reached on Articles 1 to 22 with a few exceptions. At the JHA Council meeting on 2-3

October 2003, political agreement was reached on the principle of having a minimum common

list of safe countries of origin. The Italian Presidency has requested the European Commission

to draw up a list as soon as possible to be adopted simultaneously with the Directive. In June

2002 the Council of the European Union called upon the JHA Council to approve the amended

proposal for a Directive before December 2003.

The amended proposal for a Directive on asylum procedures will not have any legislative

impact as Denmark is not to take part in the adoption of the measure according to the Protocol

on the Position of Denmark. Any implementation of corresponding rules in Danish law

requires an amendment to the Aliens Act.

References:

The European Commission’s amended proposal for a Council Directive on minimum

standards on procedures in Member States for granting and withdrawing refugee status

(COM(2002) 326 final), distributed as an enclosure to the consultation papers of 10 September

2002 from the Ministry of Refugee, Immigration and Integration Affairs.

Reply of the Danish Centre for Human Rights of 21 November 2002, prepared by Kim U Kjær.

Title:

Draft Bill amending the Aliens Act and the Integration Act (examination

of cases relating to unaccompanied minors seeking asylum)

See the section on the Rights of the Child.


2. Danish court decisions

Eastern and Western High Courts:

No judgments with reference to the Geneva Convention have been

published in the period under review.

Supreme Court:

No judgments with reference to the Geneva Convention have been

published in the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions with reference to the Geneva Convention have been published

in the period under review.

4. Opinions of and concrete cases before the Committees

Relevant Committees:

No monitoring body has been set up in connection with the Geneva

Convention.

5. Government initiatives

The Government’s Vision and Strategies for Improved Integration, June 2003

In June 2003, the Group of Ministers on Improved Integration

(Ministergruppen om bedre integration) presented 114 specific initiatives

in the immigration field.

The Danish report “Integrationsforskning i Danmark 1980-2002” (Integration

Research in Denmark 1980-2002) published by the Ministry of Integration in

November 2002

The report maps the integration research in Denmark from 1980 to 2002.

141

Rights of Refugees


Selected Literature on Human Rights

142

SELECTED LITERATURE ON HUMAN RIGHTS FROM THE

BEGINNING OF OCTOBER 2002 TO THE BEGINNING OF

OCTOBER 2003

Alston, Philip; Megret, Frederic (eds.)

The United Nations and Human Rights: A Critical Appraisal

Oxford: Clarendon Press, 2003 (600 pp.)

ISBN 0-19-829838-2

Baxi, Upendra

The Future of Human Rights

Oxford: Oxford University Press, 2002 (210 pp.)

ISBN 0-19-565289-4

Boccardi, Ingrid

Europe and Refugees: Towards an EU Asylum Policy

The Hague: Kluwer Law International, 2002 (212 pp.)

ISBN 90-411-1709-1

Chapman, Audrey; Russell, Sage (eds.)

Core Obligations: Building a Framework for Economic, Social and Cultural

Rights

Antwerp: Intersentia, 2002 (351 pp.)

ISBN 90-5095-205-4

Carøe Christiansen, Connie; Schmidt, Garbi (eds.)

Mange veje til integration: Resultater og perspektiver fra

Solcialforskningsinstituttets forskning om etniske minoriteter (Many Ways

to Integration: Results and Perspectives from the Ethnic Minority Research

of the National Danish Institute of Social Research)

Copenhagen: National Danish Institute of Social Research, 2003 (73 pp.)

ISBN 87-7487-705-4

Corstens, Geert; Pradel, Jean

European Criminal Law

The Hague: Kluwer Law International, 2002 (642 pp.)

ISBN 90-411-1362-2


Déjeant-Pons, Maguelonne; Pallemaerts, Marc

Human rights and the environment: compendium of instruments and

other international texts on individual and collective rights relating to the

environment in the international and European framework

Strasbourg: Council of Europe Publishing, 2002 (326 pp.)

ISBN 92-871-4777-9

Felice, William F

The Global New Deal: Economic and Social Human Rights in World Politics

Lanham, Maryland: Rowman & Littlefield, 2002 (296 pp.)

ISBN 0-7425-1782-9

Freestone, David et al (eds.)

Contemporary Issues in International Law

The Hague: Kluwer Law International, 2002 (256 pp.)

ISBN 90-411-1587-0

Goldewijk, Berma Klein et al (eds.)

Dignity and Human Rights: The Implementation of Economic, Social and

Cultural Rights

Antwerp: Intersentia, 2002 (350 pp.)

ISBN 90-5095-219-4

Hanski, Raija; Scheinin, Martin (eds.)

Leading Cases of the Human Rights Committee

Turku: Åbo Akademi University. Institute for Human Rights, 2003 (474 pp.)

ISBN 952-12-1131-8

Humanist Committee on Human Rights

Matching practice with principles: Human rights impact assessment: EU

opportunities: An outline for the development of human rights impact

assessment for EU policy measures with an external effect

Utrecht: Humanist Committee on Human Rights, 2002 (67 pp.)

ISBN 90-75521-11-1

International Council on Human Rights Policy

Beyond Voluntarism: Human rights and the developing international legal

obligations of companies

Versoix: International Council on Human Rights Policy, 2002 (177 pp.)

ISBN 2-940259-19-4

143

Selected Literature on Human Rights


Selected Literature on Human Rights

144

International Council on Human Rights Policy

Human Rights After September 11

Versoix: International Council on Human Rights Policy, 2002 (75 pp.)

ISBN 2-940259-31-3

Justesen, Pia

Racisme og diskrimination: Danmark og menneskerettighederne (Racism

and Discrimination: Denmark and Human Rights)

Copenhagen: Akademisk Forlag, 2003 (172 pp.)

ISBN 87-500-3725-0

Kjær, Kim U

Flygtning i Danmark: En kommenteret introduktion til det danske

asylsystem (Refugee in Denmark: An Annotated Introduction to the Danish

Asylum System)

Copenhagen: Akademisk Forlag, 2003 (282 pp.)

ISBN 87-500-3716-1

Kretzmer, David; Klein, Eckart (eds.)

The Concept of Human Dignity in Human Rights Discourse

The Hague: Kluwer Law International, 2002 (324 pp.)

ISBN 90-411-1783-0

Malmgren, Otto (ed.)

International Human Rights Documents: A Compilation of United Nations

Conventions, Optional Protocols, General Comments and General

Recommendations

Oslo: Norwegian Institute of Human Rights, 2002 (349 pp.)

ISBN 82-90851-36-7

Moseley, Alexander; Norman, Richard (eds.)

Human Rights and Military Intervention

Aldershot: Ashgate, 2002 (296 pp.)

ISBN 0-7546-0867-0

Nathwani, Niraj

Rethinking Refugee Law

The Hague: Kluwer Law International, 2003 (176 pp.)

ISBN 90-411-2002-5


Niezen, Ronald

The Origins of Indigenism: Human Rights and the Politics of Identity

Berkeley: University of California Press, 2003 (272 pp.)

ISBN 0-520-23556-8

Ovey, Clare; White, Robin

Jacobs and White, The European Convention on Human Rights, 3 rd ed.

Oxford: Oxford University Press, 2002 (554 pp.)

ISBN 0-19-876580-0

Owen, Nicholas (ed.)

Human Rights, Human Wrongs: Oxford Amnesty lectures 2001

Oxford: Oxford University Press, 2003 (369 pp.)

ISBN 0-19-280219-4

Pogge, Thomas W

World Poverty and Human Rights: Cosmopolitan Responsibilities and

Reforms

Cambridge: Polity, 2003 (296 pp.)

ISBN 0-7456-2995-4

Schulz, William F

In Our Own Best Interest: How Defending Human Rights Benefits Us All

Boston: Beacon Press, 2002 (256 pp.)

ISBN 0-8070-0227-5

Smith, Rhona K M

Textbook on International Human Rights

Oxford: Oxford University Press, 2003 (394 pp.)

ISBN 1-84-174301-1

Togeby, Lise

Fra fremmedarbejdere til etniske minoriteter (From Guest Workers to

Ethnic Minorities)

Aarhus: Aarhus University Press, 2003 (288 pp.)

ISBN 87-7934-040-7

Tomasevski, Katarina

Education Denied: Costs and Remedies

London: Zed Books, 2003 (224 pp.)

ISBN 1-84277-251-1

145

Selected Literature on Human Rights


Selected Literature on Human Rights

146

Zahle, Henrik

Dansk forfatningsret 3: Menneskerettigheder (Danish Constitutional Law

3: Human Rights)

Copenhagen: Christian Ejlers’ Forlag, 2002 (304 pp.)

ISBN 87-7241-079-5


HUMAN RIGHTS ON THE INTERNET

www.coe.int

The website of the Council of Europe provides information about the

structure, activities and official documents of the Council, including

information about the European Court of Human Rights at

http://www.echr.coe.int. The case-law relating to the ECHR can be searched

at http://www.echr.coe.int/Hudoc.htm.

www.europa.eu.int

The website of the European Union gives access to official EU documents,

information about EU institutions, information sources, activities, etc. The

website is available in 11 languages.

www.humanrights.dk

The website of the Danish Institute for Human Rights has both a Danish

and an English version. The website informs about the fields of work

carried out by the Institute, its departments, publications, conferences, etc.

It also has links to other relevant websites.

www.humanrightsbusiness.org

On this website, the Human Rights & Business Project informs of

companies’ responsibilities for human rights. Moreover there are some

indicators that companies can use to determine to what extent they comply

with the human rights standards according to the conventions. This project

is based on a partnership between the Danish Institute for Human Rights,

the Confederation of Danish Industries (Dansk Industri) and the

Industrialization Fund for Developing Countries

(Industrialiseringsfonden for Udviklingslandene).

www.menneskeret.dk

This website is produced by the Danish Institute for Human Rights and is

intended to inform of human rights in Europe. The website gives

information about the European Court of Human Rights in Strasbourg and

some easily accessible resources for themes such as freedom of religion,

rights of the disabled, freedom of expression, rights of the child, racism and

protection of personal data. At

http://www.menneskeret.dk/menneskeretieuropa/domstolen/ searches can be made

for judgments and decisions in cases where somebody has complained of Denmark

to the European Court of Human Rights. Several major newspapers and the

147

Human rights on the Internet


Human rights on the Internet

148

Danish Broadcasting Corporation (Danmarks Radio) contribute news to

the site.

www.nhri.net

This is the official website of 50 national human rights institutions. The

website offers information on human rights activities at regional and

national level and was developed in cooperation between the Danish

Institute for Human Rights and the Office of the United Nations High

Commissioner for Human Rights in Geneva.

www.nordichumanrights.dk

The website is the outcome of a cooperation project between the five Nordic

human rights institutes in Denmark, Sweden, Norway, Finland and

Iceland. The website displays various human rights themes and

information about publications, seminars, conferences and other events

staged in a Nordic country.

www.un.org

The official United Nations website gives a lot of data about member states,

documents, activities, conferences, etc. One way of keeping updated is to

access http://www.un.org/News/, or

http://www.un.org/Depts/dhl/resguide/spechr.htm for documentation on the

structure of and relations between conventions and committees.

Information about the International Court of Justice is available at

http://www.icj-cij.org/.

www.unhchr.ch

The website of the United Nations High Commissioner for Human Rights

gives access to information about conventions, conferences, committee

meetings, general recommendations, recent and forthcoming meetings and

a lot of other subjects related to human rights. The English version of the

Universal Declaration of Human Rights can be found at

http//www.unhchr.ch/udhr/lang/eng.htm. All reports submitted by the states

to the various UN Committees can be searched at

http//www.unhchr.ch/tbs/doc.nsf. Further information about the World

Conference against Racism, Racial Discrimination, Xenophobia and

Related Intolerance in Durban can be found at

http//www.unhchr.ch/html/racism.


www.youthhumanrights.net

In connection with the 50 th anniversary of the European Convention on

Human Rights, the Danish Youth Council (Dansk Ungdoms Fællesråd) and

the Danish Centre for Human Rights agreed to invite a young man and a

young woman from each European country to contribute to a plan of action

for the promotion of human rights and democracy in Europe. The website

has functioned as a debate forum for those invited, and it displays a list of

the topics debated.

www.miapris.dk

The MIA Prize is intended for companies that actively promote diversity in

working life. A company can be nominated for the MIA Prize if it has taken

specific initiatives and created results which promote diversity. The MIA

Prize is awarded by the Danish Institute for Human Rights. The first MIA

Prize will be awarded on 30 March 2004. The website provides more

information in Danish about the MIA Prize, and the reader can test his or

her knowledge of equal treatment and browse for advice on diversity

management. The website also describes the MIA network, which consists

of organisations with focus on diversity and equal treatment.

149

Human rights on the Internet


List of Judgments and Decisions

150

LIST OF JUDGMENTS AND DECISIONS

Danish court decisions

Danish Weekly Law Reports 2003, p. 2044, Supreme Court

(U.2003.2044H) Page 78

Danish Weekly Law Reports 2003, p. 1469, Supreme Court

(U.2003.1469H) Page 54

Danish Weekly Law Reports 2003, p. 1411, Eastern High Court

(U.2003.1411Ø) Page 76

Danish Weekly Law Reports 2003, p. 1328, Supreme Court

(U.2003.1328H) Page 55

Danish Weekly Law Reports 2003, p. 1136, Eastern High Court

(U.2003.1136Ø) Page 52

Danish Weekly Law Reports 2003, p. 1029, Supreme Court

(U.2003.1029H) Page 79

Danish Weekly Law Reports 2003, p. 787, Eastern High Court

(U.2003.787Ø) Page 52

Danish Weekly Law Reports 2003, p. 779, Eastern High Court

(U.2003.779Ø) Page 53

Danish Weekly Law Reports 2003, p. 624, Supreme Court

(U.2003.624H) Page 77

Danish Weekly Law Reports 2003, p. 56, Supreme Court (

U.2003.56H) Page 72

Danish Weekly Law Reports 2002, p. 2780, Eastern High Court

(U.2002.2780Ø) Page 54

Danish Weekly Law Reports 2002, p. 2729, Western High Court

(U.2002.2729V) Page 54

Danish Weekly Law Reports 2002, p. 2591, Eastern High Court

(U.2002.2591Ø) Page 86

Danish Weekly Law Reports 2002, p. 2362, Eastern High Court

(U.2002.2362Ø) Page 61

Danish Weekly Law Reports 2002, p. 2060, Supreme Court

(U.2002.2060H) Page 56

Judgment of the District Court of Fredericia of 1 October 2003 Page 125

The Thule case Page 130


Opinions of the Parliamentary Ombudsman

File No.: 2002-2685-522

It is expected that the case will be quoted in the 2003 Report of

the Parliamentary Ombudsman, which will presumably be

published in September 2004 Page 119

Judgments and decisions of the European Court of Human Rights

Cases decided:

Vasileva v. Denmark, application No. 52792/99, judgment of

25 September 2003 Page 42

Pedersen and Baadsgaard v. Denmark, application No. 49017/99,

judgment of 19 June 2003 Page 80

The judgments are available at http://hudoc.echr.coe.int

Cases declared inadmissible:

Ohlen v. Denmark, application No. 63214/00, declared

inadmissible on 6 March 2003 Page 57

The decision is available at http://hudoc.echr.coe.int

Pedersen v. Denmark, application No. 68693/01, declared

inadmissible on 12 June 2003 Page 57

The decision is available at http://hudoc.echr.coe.int

Sørensen v. Denmark, application No. 52562/99, declared

inadmissible on 20 March 2003 Page 100

The decision is available at http://hudoc.echr.coe.int

Hoffman Karlskov v. Denmark, application No. 62560/00, declared

inadmissible on 20 March 2003 Page 87

The decision is available at http://hudoc.echr.coe.int

Jensen and Rasmussen v. Denmark, application No. 52620/99,

declared inadmissible on 20 March 2003 Page 87

The decision is available at http://hudoc.echr.coe.int

Madsen v. Denmark, application No. 58341/00, declared

inadmissible on 7 November 2002 Page 72

The decision is available at http://hudoc.echr.coe.int

151

List of Judgments and Decisions


List of Judgments and Decisions

152

Concrete cases before the Committees

Committee on the Elimination of Racial Discrimination

Cases decided:

Quereshi v. Denmark, communication No. 27/2003 of

19 August 2003 Page 101

The decision is available at

http://www.ohchr.org/tbru/cerd/Quereshi_v_Denmark.pdf

Cases declared inadmissible:

The Documentation and Advisory Centre of Racial Discrimination

(DRC) v. Denmark, communication No. 28/2003, declared

inadmissible on 26 August 2003 Page 103

The decision is available at

http://www.ohchr.org/tbru/cerd/DACRD_v_Denmark.pdf

POEM and FASM v. Denmark, communication No. 22/2002,

declared inadmissible on 15 April 2003 Page 103

The judgment is available at

http://www.unhchr.ch/tbs/doc.nsf/FramePage/TypeJurisprudence?

OpenDocument&Start=1&Count=15&Expand=2

Sadic v. Denmark, communication No. 25/2002, declared

inadmissible on 16 April 2003 Page102

The judgment is available at

http://www.unhchr.ch/tbs/doc.nsf/FramePage/TypeJurisprudence?

OpenDocument&Start=1&Count=15&Expand=2


LIST OF BILLS

Bill amending the Act on Prohibition against Differential Treatment on

the Labour Market, etc.

Bill No. L 40, introduced in writing on 22 October 2003 Page 98

Draft Bill amending the Aliens Act (amendment of rules on requirement

of ties at reunification of spouses, etc.)

Bill No. L 6, introduced in writing on 8 October 2003 Page 63

Draft Bill amending the Criminal Code and the Administration of Justice

Act (fight against biker crime and other organised crime)

Act No. 436 of 10 June 2003 Page 47

Bill amending the Act on Induced Abortion and the Act on Sterilisation

and Emasculation (embryo reduction, induced abortion at private

hospitals and abolition of the residence requirement)

Act No. 435 of 10 June 2003 Page 28

Draft Bill amending the Act on Extradition of Offenders and the Act on

Extradition to Finland, Iceland, Norway and Sweden (implementation of

Council Framework Decision on the European arrest warrant and the

surrender procedures between Member States)

Act No. 433 of 10 June 2003 Page 31

Draft Bill on Patient Safety in the Health Sector

Act No. 429 of 10 June 2003 Page 66

Act amending the Act on an Active Social Policy, the Act on Cash Benefits

in the Event of Sickness or Birth, the Act on Flexible Allowance, the Social

Services Act, the Act on Individual Housing Benefits, the Act on the

Procedural Safeguards and Administration in the Social Field, and the

Integration Act

Act No. 417 of 10 June 2003 Page 100

Draft Bill amending the Criminal Code (female circumcision)

Act No. 386 of 28 May 2003 Page 111

Draft Bill on Equal Treatment irrespective of Ethnic Origin

Act No. 374 of 28 May 2003 Page 90

153

List of Bills


List of Bills

154

Bill amending the Act on Protection against Dismissal due to Association

Membership (extended protection of the negative freedom of association)

Bill No. L 120 Page 86

Bill amending the Act on Social Services (use of force and other

interference with the right to self-determination – special door-openers,

restraint and removal)

Act No. 343 of 14 May 2003 Page 40

Draft Bill amending the Aliens Act (reform of activation and education at

asylum centres and reform of the system governing the payment of cash

allowances to asylum-seekers and others)

Act No. 292 of 30 April 2003 Page 133

Draft Bill amending the Aliens Act (stricter measures for return,

streamlining of the examination of applications for residence permits on

humanitarian grounds, implementation of the Eurodac Regulation, etc.)

Act No. 291 of 30 April 2003 Page 134

Bill amending the Act on Equal Treatment of Women and Men (the

Gender Equality Board (Ligestillingsnævnet) made permanent and scope

of application extended)

Act No. 286 of 25 April 2003 Page 99

Draft Bill amending the Criminal Code, the Adoption Act and the

Administration of Justice Act (child pornography, sexual exploitation of

children and the sale of children)

Act No. 228 of 2 April 2003 Page 120

Bill amending the Act on Denmark’s Accession to the Schengen

Convention

Act No. 227 of 2 April 2003 Page 69

Draft Bill amending the Aliens Act and the Integration Act (examination

of cases relating to unaccompanied minors seeking asylum)

Act No. 60 of 29 January 2003 Page 115


Draft Bill amending the Criminal Code, the Administration of Justice Act

and the Marketing Practices Act (cybercrime)

It is expected that the Bill will be introduced to the Danish Parliament in

November 2003 Page 67

155

List of Bills


List of other Drafts and Documents

156

LIST OF OTHER DRAFTS AND DOCUMENTS

Report of the Ministry of Justice on criminal proceedings concerning sexual

abuse of children (Report No. 1420) Page 118

Proposed themes for legislative proposals for revision of the Psychiatry Act

Page 123

The Optional Protocol to the International Convention against Torture and

other Cruel, Inhuman or Degrading Treatment or Punishment Page 32

Commission Green Paper: Procedural Safeguards for Suspects and

Defendants in Criminal Proceedings throughout the European Union

Page 50

The European Commission’s amended proposal for a Council Directive on

minimum standards on procedures in Member States for granting and

withdrawing refugee status (COM(2002) 326 final) Page 135

Proposed Council Directive on compensation to crime victims Page 95

Proposed Council Framework Decision concerning the application of the

ne bis in idem principle Page 60

Proposed Council Framework Decision on attacks against information

systems Page 70

Proposed Council Decision on the investigation and prosecution of war

crimes and crimes against humanity, etc. Page 70

Draft Executive Order on Custody and draft Guidelines on Custody

Page 38

Draft Executive Order on the curriculum of pre-school classes Page 96

Draft Executive Order on transitional rules related to the duty of local

authorities to prepare descriptions of educational developments Page 97


ABBREVIATIONS

Court The European Court of Human Rights

CPT The European Committee for the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment

ECRI The European Commission against Racism and Intolerance

ECHR The European Convention for the Protection of Human

Rights and Fundamental Freedoms

ECSR The European Committee of Social Rights

EU Charter The Charter of Fundamental Rights of the European Union

(2000/C 364/01)

H Supreme Court

HK Supreme Court order

HRC The Human Rights Committee

ICAT The International Convention Against Torture and other

Cruel, Inhuman or Degrading Treatment or Punishment

(1984)

ICCPR The International Covenant on Civil and Political Rights

(1966)

ICEDAW The International Convention on the Elimination of All

Forms of Discrimination against Women (1979)

ICERD The International Convention on the Elimination of All

Forms of Racial Discrimination (1965)

ICESCR The International Covenant on Economic, Social and

Cultural Rights (1966)

ICRC The International Convention on the Rights of the Child

(1989)

Institute The Danish Institute for Human Rights

U Danish Weekly Law Reports

UNHCR The United Nations High Commissioner for Refugees

V Western High Court

Ø Eastern High Court

157

Abbreviations


Index

158

INDEX

Advisory Committee on the Framework Convention for the Protection of

National Minorities, p. 25

Aliens, pp. 10, 11, 17, 20, 37, 62-73, 116, 126, 133-135, 137-140

Anonymous witnesses, p. 48

Arranged marriages, pp. 11, 112

Arrest warrant, European, pp. 31, 40, 50

Association and assembly, freedom of, pp. 85-87

Asylum-seekers, pp. 10, 11, 115-118, 133 -141

Asylum procedure, pp. 116, 135

Automatic Processing of Personal Data, p. 70-71

Biker crime and other organised crime, fight against, pp. 7, 47, 50

Cash benefit, pp. 10, 100

Children, sale of, pp. 9, 112, 113, 122

Child pornography, pp. 9, 118-122

Closed shop agreements, p. 86

Committee of Ministers of the Council of Europe, pp. 21, 38

Committee of the European Charter for the Regional or Minority German

minority in Denmark and merger of counties and municipalities, p. 133

Complaint, individual right of, pp. 19, 21, 22, 23, 24, 25, 26, 27

Complaints Committee for Ethnic Equal Treatment, pp. 11, 91, 92-95

Committee on Economic, Social and Cultural Rights (CESCR), p. 22

Committee against Torture (CAT), p. 23

Committee on the Elimination of Discrimination against Women

(CEDAW), pp. 23-24

Committee on the Elimination of Racial Discrimination (CERD), pp. 23,

101-104

Committee on the Rights of the Child (CRC), pp. 24, 122-123

Coercion, pp. 40-41

Confidentiality, p. 71

Confiscation, pp. 4, 49

Custody, pp. 30, 38, 40

Cybercrime, pp. 67-68

Data interception, pp. 47, 49

Death penalty, pp. 28, 33

Defamation, see Libel

Demented, the, p. 41

Deportation of asylum-seekers whose application has been refused, see

Return, pp. 134, 137-140

Deprivation of liberty, pp. 8, 37-38, 41, 42, 46, 133-134


Detention, see Deprivation of liberty

Differential treatment on the labour market, prohibition against, pp. 91-94,

103, 122

Dignity, pp. 7, 8, 12, 30, 113

Discrimination, racial, pp. 7, 11, 23, 64, 89-94, 102-105, 130, 133

Disabilities, rights of employees with, pp. 129-130

Disabled to use public services, possibilities of the, pp. 126-128

Differential treatment between nationals, pp. 11, 63-64, 109

Differential treatment based on sex, pp. 11, 24, 99

Differential treatment based on racial or ethnic origin, pp. 89-94

Door-openers, use of special, pp. 40-42

Economic, social and cultural rights, pp. 13, 18-19, 22, 32, 108-110

Effective remedy, right to an, pp. 88-89, 137-139

Electronic evidence, pp. 67-69

Embryo reduction, pp. 28, 29

Equal treatment irrespective of racial or ethnic origin, principle of, pp. 97,

98

European Commission against Racism and Intolerance (ECRI), p. 25

European Committee for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment (CPT), p. 25

Expert European Committee of Social Rights, pp. 8, 24, 109-110, 129-130

Expert Committee of the European Charter for the Regional or Minority

Languages, pp. 26, 132

Expression and information, restriction of freedom of, pp. 82-84, 120

Expression and information, freedom of, pp. 75.84

Expulsion, pp. 37, 72, 137

Extradition for prosecution. pp. 29-30, 50, 57

Fair trial, right to a, pp. 7, 31, 46-59, 119

Faroe Islands, p. 61

Female circumcision (female genital mutilation), pp. 112, 113-115

Forced marriage, pp. 10, 63-64, 112

Foreigners, see Aliens

Freedom of the press, see Journalistic freedom

Gender Equality Board, pp. 11, 99, 112

Greenland, pp. 86-87, 122

Greenlanders, socially vulnerable, p. 132

Human beings, trafficking in, p. 96, 112

Human Rights Committee (HRC) p. 22

Inspect documents, right to, pp. 7, 45-47

Identity, pp. 7, 8, 42-45, 47, 48, 75

Indirect differential treatment/discrimination, pp. 23, 90

159

Index


Index

160

Immigrants, pp, 78,79

Incorporation (implementation) of Human Rights Conventions into

Danish Law, Report on, pp. 17-20

Integration, pp. 9, 10, 112, 140

Integrity, personal, pp. 7, 11, 113-115, 125

International monitoring bodies, pp. 21-22

Interpreters, assistance of, pp. 39, 140

Journalistic freedom, p. 83

Libel, pp. 77, 78, 80-81

Liberty and security, right to, pp. 37-46

Life, right to, pp. 28-30

Mainstreaming, a new equality strategy, p. 105

Marriage between closely related persons, pp. 63, 65

MIA project, diversity and equal treatment at workplaces, p. 105-106

National, pp. 10, 11, 32, 52, 64, 65, 73, 109, 117

Ne bis in idem (no one should be prosecuted or tried twice for the same

criminal offence), pp. 59-61

Negative freedom of association (right to opt out of a certain trade union),

p. 85

Patients’ boards of complaints, pp. 8, 124

Patient safety, pp. 66-67

Personal data, disclosure of, pp. 70

Pre-school classes, curriculum of, pp. 96-97

Protection of personal data, p. 66

Property, protection of, pp. 47, 106-107

Prison Rules, European, pp. 38-40

Prohibition of reprisals, p. 91

Procedural Safeguards for Suspects and Defendants in Criminal

Proceedings throughout the European Union, pp. 50, 52

Private and family life, right to respect for, pp. 7, 47, 62-74, 114

Propaganda activities, p. 76

Proportionality (a fair balance between the cause of the interference with a

right and the basis and purpose of the interference), pp. 8, 42-46, 49, 66, 67,

68, 83

Psychiatric patients, pp. 12, 124

Racism, pp. 25, 78, 103-104

Racist viewpoints, pp. 78-79

Religion, freedom of, pp. 74-75

Refugee status, pp. 116, 135-136, 139

Remand prisoners, rights of, pp. 38-39

Residence permit, pp. 73, 96, 115-116, 136-140


Reasonable time, right to a hearing within, pp. 76, 133

Return of asylum-seekers whose application has been refused, pp. 134, 137-

140

Return procedure, pp. 11, 134

Restraint of individuals in personal care situations, p. 40

Restraint in psychiatric establishments, immobilisation, involuntary

medication, pp. 123, 125

Reunification of spouses, requirement of ties at, pp. 63, 65

Roma pupils, special classes for, p. 132

‘Safe’ third countries, pp. 136, 140

Semi-forced marriage, pp. 10, 112

Secrecy of communication, pp. 48, 68

Sexual abuse of children, pp. 9, 118-121, 122

Self-determination, the individual’s right of, pp. 7, 10, 11, 12, 29, 40-42, 64

Shared burden of proof, pp. 91-94

Slavery and forced labour, prohibition of, pp. 35-36

Telephone tapping, p. 77

Thule case, the, p. 1131

Torture and inhuman or degrading treatment or punishment, prohibition

of, pp. 29-31

Unaccompanied minors to seek asylum, right of, pp. 115-118

Undercover agents, p. 48

Victims of crime, state compensation to all, pp. 95-96

Visa administration, p. 73

War crimes and crimes against humanity, p. 70-71

Women, trafficking in, pp. 9, 12, 36, 112

161

Index


162

HUMAN RIGHTS IN DENMARK STATUS 2003

© The Danish Institute for Human Rights, 2003

The publication, or parts of it, may be reproduced if author and source are

quoted.

Preparation: Birgitte Kofod Olsen and Rikke Frank Jørgensen

Editing: Birgitte Kofod Olsen, Rikke Frank Jørgensen and Morten Kjærum

(responsible)

Publishing: Klaus Slavensky

Translation: Dialog Translatørservice

Layout: Carsten Schiøler

Production: Handy-Print A/S, Skive

The following have contributed to the report:

Christoffer Ulrik Badse, LL.M. (cand.jur.)

Eva Ersbøll, LL.M. (cand.jur.)

Rikke Frank Jørgensen, MA (cand.mag.), EMA

Kim U Kjær, LL.M. (cand.jur.), Ph.D.

Ida Elisabeth Koch, LL.M. (cand.jur.), Ph.D.

Maria Ventegodt Liisberg, LL.M. (cand.jur.)

Caroline Nyvang, student assistant (stud.mag.)

Birgitte Kofod Olsen, LL.M. (cand.jur.), Ph.D.

Kristine Planck, student assistant (stud.jur.)

Mandana Zarrehparvar, social worker

Bibliographic information according to the HURIDOCS standard format:

Title: Human Rights in Denmark. Status 2003

Corporate Author: The Danish Institute for Human Rights

Personal Authors: Birgitte Kofod Olsen and Rikke Frank Jørgensen

Index Terms: Human Rights / International Law / National Law /

Administration of justice / Courts / Torture / Discrimination / Women /

Refugees / Disabled People / Children / Minorities

Printed in Denmark 2004 by

Handy-Print A/S, Skive

ISBN 87-90744-75-6

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