Status 2004 - Danish Institute for Human Rights

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Status 2004 - Danish Institute for Human Rights

Human Rights in Denmark Status 2004

© The Danish Institute for Human Rights, 2004

The publication, or parts of it, may be reproduced if author and source are acknowledged.

Preparation: Birgitte Kofod Olsen and Christoffer Ulrik Badse

Editing: Birgitte Kofod Olsen, Christoffer Ulrik Badse and Morten

Kjærum (responsible)

Publishing: Klaus Slavensky

Translation and editing of English version: Lisbeth Arne Pedersen

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.)

Bjørn Dilou Jacobsen (cand. jur.)

Rikke Frank Jørgensen, MA (cand. mag.), EMA

Kim Ulrich Kjær, LL.M. (cand. jur.), Ph.D.

Stephanie Lagoutte, LL.M. (cand. jur.), Ph.D.

Maria Ventegodt Liisberg, LL.M. (cand. jur.)

Marianne Nørregaard, LL.M. (cand. jur.), Ph.D.

Birgitte Kofod Olsen, LL.M. (cand. jur.), Ph.D.

Kristine Planck, LL.M (cand. jur.)

Mandana Zarrehparvar, BA Political Sciences, social worker

Collation and processing of documentation:

Nina Palesa Bonde, student assistant (stud.jur.)

Pernille Ørum Walther, student assistant (stud,jur.)

Morten West, student assistant (stud.jur.)

Bibliographic Information according to the HURIDOCS Standard Format:

Title: Human Rights in Denmark. Status 2004.

Corporate Author: The Danish Institute for Human Rights

Personal Author: Birgitte Kofod Olsen and Christoffer Ulrik Badse

Index Terms: Human Rights / International Law / National Law / Admi-

nistration of justice / Courts / Torture / Discrimination / Women / Refu-


gees / Anti-terror

Printed in Denmark 2005 by

Handy-Print A/S, ISO 14001 certified printers, Skive

ISBN 87-90744-83-7


BAGSIDETEKST PÅ OMSLAGET

The Status Report reviews bills, decisions, opinions and government initiatives within the field of human rights in Denmark

in the period October 2003 to October 2004. 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,

the disabled, ethnic and national minorities, and refugees.

Status 2004 has been prepared by the Danish Institute for Human Rights. The Danish Institute for Human Rights was

established by statute on the establishment of the Danish Centre for International Studies and Human Rights of June 6,

2002. The Institute is the Danish entry point for the gathering and promotion of knowledge about human rights in Denmark,

in Europe, and internationally. This includes research, reporting, information, education and documentation on Danish,

European and international conditions.


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

THE DANISH INSTITUTE FOR HUMAN RIGHTS

A NATIONAL HUMAN RIGHTS INSTITUTION . . . . . . . 13

READER GUIDELINES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

IMPLEMENTATION OF HUMAN RIGHTS CONVENTIONS

IN DANISH LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

INTERNATIONAL CONTROL MECHANISMS. . . . . . . . . . . . 26

GENERAL RIGHTS

- Right to Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

- Prohibition of Torture and Inhuman or

Degrading Treatment or Punishment . . . . . . . . . . . . . . . . . . . . 37

- Prohibition of Slavery and Forced Labour . . . . . . . . . . . . . . . . . . . . . . . . . 48

- Right to Liberty and Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

- Right to a Fair Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

- No Punishment without Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

- Right to Respect for Family and Private Life, Home, and Correspondence 71

- Freedom of Thought, Conscience and Religion . . . . . . . . . . . . . . . . . . . . . . . . . . 104

- Freedom of Expression and Information . . . . . . . . . . . . . . . . . 108

- Freedom of Assembly and Association . . . . . . . . . . . . . . . . . . . . . 119


- Right to an Effective Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

- Prohibition of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

- Protection of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

- Economic, Social and Cultural Rights . . . . . . . . . . . . . . . . . 138

SPECIAL RIGHTS

- Rights of Women . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

- Rights of the Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

- Rights of the Disabled . . . . . . . . . . . 162

- Rights of Ethnic Minorities . . . . . . . . 167

- Rights of Refugees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

SELECTED LITERATURE FROM 2004 ON HUMAN RIGHTS… 184

HUMAN RIGHTS ON THE INTERNET

- The Danish Institute for Human Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . 190

- Some international non-governmental organizations . . . . . . . . . . . . 192

- Supra- and international organizations . . . . . . . . . . . . . . . . . . . . . . 194


LIST OF JUDGEMENTS AND DECISIONS . . . . . . . . . . . . . . . . . 208

ABBREVIATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

PREFACE

Denmark’s compliance with international human rights conventions has been a major issue in the public debate during 2004

and not least the critique in the Report of the Council of Europe Human Rights Commissioner has drawn considerable

attention.

The debate has mainly concerned fundamental human rights such as prohibition of discrimination, right to family life,

prohibition of torture and the freedoms protecting personal liberty and the right to respect for private life. Furthermore,

groups in need of special protection, such as children and the disabled, have been at the centre of attention.

The development in human rights protection in Denmark during 2004 is briefly described below and elaborated in the

report’s chapters on General Rights and Special Rights.

Incorporation

This year, a fundamental problem was brought up in connection with the Government’s decision not to incorporate the UN

human rights conventions in Danish law.

During the debate in Parliament on the incorporation of the basic UN conventions on civil and political rights and

economic, social and cultural rights respectively, as well as the four thematic conventions on torture, racial discrimination,

discrimination against women and the rights of the child, the Minister of Justice stated that the Government did not intend to

follow the recommendations of the Incorporation Committee (Inkorporeringsudvalget). Already in 2001, this Committee

concluded in its report (ref. Status 2003) that the conventions on civil and political rights, torture and racial discrimination

ought to be incorporated, but not the conventions on social, economic and cultural rights, discrimination against women and

the rights of the child.

The Government’s decision was based on the interpretation that through it’s ratification of the conventions, Denmark has

committed itself to comply with its international obligations, and therefore an incorporation would be legally unnecessary

and thus only of symbolic value.

With this decision, the efficient protection of human rights as contained in the UN Conventions will depend totally on both

the courts and administrative authorities seeing to it that in the future the conventions will be applied in practice. Also

attorneys and citizens should be informed that the provisions of the conventions can be called on in court, irrespective of

their incorporation or not into law.

Discrimination

Problems concerning discrimination and its elimination continue to present a major challenge to the European countries. In


ecent years, attention in Denmark has concentrated on discrimination on the basis of race and ethnic origin; gender

discrimination, however, has also regained attention, especially due to the discrepancy between women’s and men’s wages

and other labour market related issues. Discrimination of disabled persons and discrimination based on age constitute new

areas of attention.

Protection against discrimination on the grounds of sex, ethnic origin, religion, faith, disability, age or sexual orientation is

ensured through the implementation of EU directives on equal treatment and employment. Actual efficient protection will,

however, depend on the legislation being made visible in such a way that all stakeholders in society become aware of the

new standards and incorporate them in daily routines and manners. One instance where a certain effect can already now be

detected is in those businesses where the awareness of both business advantages and social responsibility contributes to

promote management approaches built on equal opportunities for everyone and appreciation of diversity in the staff. The

public debate differs from this perspective inasmuch as knowledge and awareness of the effects of discrimination are only

rarely expressed.

In this light, it would be both beneficial and desirable if Denmark takes steps to ratify the additional protocol 12 to the

European Human Rights Convention, which will enable citizens to complain about all forms of discrimination to the

European Court of Human Rights.

This year’s concrete examples of discrimination in legislation and practice are found in relation to reunification of spouses,

starting allowance, access to school, vocational training placement and access to discotheques. Furthermore, cases have

been brought before the Danish courts about racist slurs. Efficient and free access to complaints handling for those involved

constitute an important step in fighting discrimination in Denmark. In 2004, The Complaints Committee for Ethnic Equal

Treatment, established by the Danish Institute for Human Rights in 2003, has had its mandate expanded to comprise

discrimination in the labour market, which constitutes an important and positive expansion of the scope of the Committee’s

work. The Government has also published its Action Plan to Promote Equal Treatment and Diversity and to Fight Racism,

and in 2004 special funds were appropriated to implement the Action Plan. Reports prepared by the authorities on division

of school classes and segregated schools together with important behavioural investigations also testify to the attention

directed at discrimination and integration. Very bluntly you could say that on the one hand the Government has launched

positive measures to fight discrimination and promote integration in Denmark, whereas the understanding of problems

concerning discrimination in connection with family reunification and other areas of importance to new Danes who wish to

come to Denmark is less noticeable. In this connection reference is also made to the report prepared by the Danish Institute

for Human Rights on spouses’ reunification in Denmark.

Protection of private life

The right to respect for private life is a fundamental right in a democratic society, but still today this right is at risk of being

eroded. A considerable amount of anti-terror legislation is thus based on the understanding that a balance must be struck

between the protection of private life and security. This constitutes a deviation from the outset, where protection is the main

rule and any infringement can only take place when society’s interest outweighs the inconvenience that the citizen will face

due to such an infringement. This interpretation seems to have formed the basis for this year’s bill on an extended DNA

database and the order on logging, which determines how telecommunication operators shall register and store information

about telecommunication and Internet traffic

According to the order on logging, telecommunication and Internet operators as well as larger housing associations must

store addresses of sender and receiver, time and place of all e-mails. In other words, who has been communicating with

whom, when and for how long? Such records constitute a comprehensive infringement of the protection of the individual


citizen’s privacy, and therefore requires that the infringement be founded on a real possibility of more efficient

investigation. As the perpetrators who are the target of these new means of investigation can avoid detection with relative

ease it has not been rendered probable that this comprehensive infringement of practically all citizens’ private lives is

necessary for police investigations.

Children

2004 offered several legislative proposals with considerable impact on the lives of children. The proposals mainly concern

children with ethnic backgrounds other than Danish, but also the group of socially exposed children in Denmark who are

involved in crime.

Concerning children and juveniles involved in crime, an amendment to the Administration of Justice Act created the basis

for applying coercive measures in criminal procedures against children under the age of 15. At the same time a specific

requirement on proportionality was included to ensure that due attention is paid to the vulnerability of children. However,

the requirements of the Convention on the Rights of the Child, to ensure that the child be heard in advance of planned

measures applicable to it, have not been incorporated into the Act. Nor have the requirements of the Convention concerning

judicial guarantees when a child below the age of criminal responsibility is involved in criminal proceedings been reflected

in the amended Administration of Justice Act.

Furthermore, the adoption of the Act on Police Activities and the pertaining regulation concerning detention have entailed

further regulation of the access to place children under the influence of alcohol between the age of 12 and 15 in detention.

Police and politicians have also presented a wish for tighter rules of detention for delinquent children, targeted at organized

groups of foreign children, who are sent here to commit shoplifting and purse snatching. One of the arguments presented in

this connection has been the need to protect the children against those who control them. The state trying to hinder forced

and economic abuse of children in this manner through harsher rules of detention does not only go against fundamental

human rights principles and several of the provisions of the Convention on the Rights of the Child. It is also at odds with the

approach to the treatment of children, which has been developed in the Danish society over almost 30 years.

For children with ethnic backgrounds other than Danish, new legislation has weakened the protection of their possibilities to

live together with their parents. The legal right to family reunification with children between 15 and 18 years of age has

been abandoned; children in this age group can now only obtain a resident permit in exceptional cases. The Convention on

the Rights of the Child, however, requires that the best interest of the child must always be taken into consideration in

decisions of importance to the child, and it stipulates that the child has the right to grow up in a family environment. These

considerations should make it the rule rather than the exception that children between 15 and 18 years of age having lost

their resident permit due to a stay abroad can obtain a new resident permit.

The autumn also offered a debate on children and education within the framework of problems concerning ethnicity,

integration and language education. The discussion has not least centred on different models for dispersing children with

ethnic backgrounds other than Danish if the language skills of these children are considered insufficient. The administration

has considered such models as being contrary to the Act on Public Schools on the basis of which the special classes for

Roma children in Ellsinore have been considered inconsistent with the law. Other measures have been proposed to

encounter the actual division of schools on grounds of ethnicity, as a result of socially resourceful parents choosing to leave

the local school, if there is an overrepresentation of children with ethnic backgrounds other than Danish.

Persons with disabilities

The opportunities for persons with disabilities to participate on equal terms with other citizens in public life have attracted

increased attention. During 2004 this resulted in certain improvements concerning access to buildings.

Still, in other areas the commitment to ensure equal opportunities for persons with disabilities has not gained ground. A

recent example of this is the fare for taxi transport, where the starting rate for hiring a taxi in the street was changed, making

it considerably more expensive to order a taxi by telephone than hailing one in the street. In this connection, The Danish

Council of Organizations of Disabled People pointed out that this would constitute indirect discrimination, as the majority


of persons with disabilities would have no access to take advantage of the lower starting rate (in the street).

Likewise, the consequence of a new bill on public transport will be that persons with disabilities other than impaired

mobility, e.g. the visually impaired, will be excluded from access to specially arranged transport. At the same time, the bill

stresses that there can be no upper age limit for specially arranged transport. On the other hand, an age limit of 18 years is

proposed, effectively excluding certain persons under the age of 18 from using public transport. In addition, the scope of

specially arranged transport will be limited to social purposes as persons with disabilities will not be allowed to use the

specially arranged transport to and from work. As long as no satisfactory alternatives are available, this limitation will

obstruct equal opportunity in the labour market for persons with disabilities.

In terms of treatment of psychiatric patients, forced fixation remains a problem. As early as 2002, the Council of Europe

Committee on Torture criticized Denmark for using forced fixation, but in spite of this the new order on compulsory

treatment in psychiatric wards contains no provisions to ensure against such fixation for longer periods of time, which could

be in breach of Article 3 of the European Convention on Human Rights.

Greenland

In 2004, the Commission on Greenland’s Judicial System concluded its work by carrying out a revision of Greenland’s

judicial system. Among the report’s assessments is one on the compatibility of the administration of justice and the prison

and probation service with human rights. It is especially encouraging that the Commission recommends maintaining the

district courts and the system applying lay judges, thus acknowledging Greenlandic tradition. Another step in the direction

of ensuring human rights protection of those serving a sentence is the effort to change the so-called transfer practice

meaning that Greenlanders sentenced to safe custody are transferred to the special security hospital in Herstedvester Prison

in Denmark for 10 to 15 years. However, still a lot needs to be done before Greenlandic patients under psychiatric treatment

and inmates are ensured treatment under conditions which enable them to maintain contact with their families, Greenlandic

culture, and way of life.

Altogether, 2004 has been marked by a weakening of the human rights protection that we have built up over many years in

Denmark. There are a number of examples of human rights violations, but also of situations where we are moving towards a

lower level of protection thus abandoning principles, which have so far constituted the basis for Danish legislation and

practice.

At the same time there are areas where human rights protection has been considerably improved. These improvements are

based on EU directives, which through their incorporation into Danish law have ensured legislation at the same time

protecting and promoting fundamental human rights principles such as non discrimination and equal treatment.

THE DANISH INSTITUTE FOR HUMAN RIGHTS

A NATIONAL HUMAN RIGHTS INSTITUTION

Claus Haagen Jensen Morten Kjærum Birgitte Kofod Olsen

Chairman of the Board Director Head of Department


The Danish Institute for Human Rights was established by Act of June 6, 2002, on the Establishment of the Danish Centre

for International Studies and Human Rights. The Institute has been established as a national human rights institution in

accordance with the UN Paris Principles. The Institute carries on the activities initiated by the Danish Centre for Human

Rights in 1987.

The Danish Institute for Human Rights is one of two institutes under the Danish Centre for International Studies and Human

Rights (DCISM); the Danish Institute for International Studies being the other one.

The Danish Institute for Human Rights gathers, develops and disseminates knowledge about human rights in Denmark, in

Europe, and internationally. Work at the Institute includes research, reporting, information, education and documentation on

Danish, European and international conditions, as well as preparing briefs and comments. The Institute cooperates with

organizations and public authorities in Denmark, the Council of Europe, OSCE, EU, and the UN. The Institute works

internationally through partnerships with local cooperation partners on capacity building projects and education projects for

independent human rights institutions and state institutions, including police and the judiciary. The purpose of the national

work is to protect and promote human rights protection in Denmark through analyses, investigations, education,

information, and counselling. Furthermore, reports are prepared for the monitoring bodies of the UN and the Council of

Europe on the implementation of international and regional Conventions in Danish law. A special part of the Institute’s

mandate is to promote equal treatment of everyone without any distinction based on race or ethnic origin. In addition, the

Institute for Human Rights can handle complaints about violations of the prohibition against discrimination based on race or

ethnic origin. Please refer to page 16 concerning the Complaints Committee for Ethnic Equal Treatment for further

information.

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 summarize the bills, decisions,

opinions, and initiatives of the period affecting human rights.

The first part of this Report gives a status of the rights that we traditionally characterize 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 are accounted for in the second half of the Report. These rights are the rights of women, the rights of the child, the

rights of the disabled, as well as the rights of ethnic minorities, and the rights of refugees. Relevant legal instruments from

the Council of Europe, the EU, and the UN govern these rights individually.

The background material of Status 2004 comprises bills, but not existing acts 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 2004 only mentions EU initiatives of relevance to human rights if they have been mentioned in the consultation

papers issued by Danish authorities.


Bills

The Danish ministries make increasing use of the option to involve expert organizations in the preparatory work through

consultations. Being one of the organizations normally consulted, the Danish Institute for Human Rights receives a large

number of consultation papers from ministries each year.

Most consultation papers relate to bills amending existing Danish legislation or establishing new law, but some concern

legislative acts from the EU to be implemented in Danish law.

The Danish Institute for Human Rights replies to such consultation papers relating to human rights concerns which are

raised by a bill or a legislative act. These replies are summarized briefly under the individual rights.

National control mechanisms

Apart from the Complaints Committee for Ethnic Equal Treatment and the Gender Equality Board, Denmark has no special

institutions or agencies mandated to handle complaints about differential treatment. If a person believes that the State has

violated other human rights, he or she must in most cases initiate 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 European Convention on Human Rights (ECHR)

contains a number of freedoms. So far, the ECHR is the only human rights instrument incorporated into Danish law. In

October of 2001, the Incorporation Committee, set up by the Ministry of Justice, recommended that three UN human rights

conventions signed by Denmark should be incorporated into Danish law. The recommendations of the Committee were

summarized in the section on Implementation of Human Rights Conventions into Danish Law of the Status Report 2003.

Danish court decisions

All Danish courts of law - district courts, the Eastern and the Western High Courts, and the Supreme Court - hear cases

involving issues of compatibility with or violation of human rights. The convention invoked most frequently before the

courts is the ECHR, only rarely are the UN human rights conventions cited.

The following review of human rights only includes judgements published in the Danish Weekly Law Reports (Ugeskrift

for Retsvæsen) in which the courts have applied the ECHR and UN human rights conventions. As for judgements

concerning the prohibition of discrimination, however, decisions where only national law has been applied have been

included. The judgements have been selected on the basis of a review of the Weekly Law Reports from October 2003 (no.

41) through October 2004 (no. 41). ). The summaries of these judgements 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 from time to

time takes human rights related questions into consideration in his decisions. The Parliamentary Ombudsman can review

cases concerning the application of the provisions of the European Human Rights Convention at his own discretion.

The Complaints Committee for Ethnic Equal Treatment

The Institute for Human Rights established the Complaints Committee for Ethnic Equal Treatment after the adoption of the

Act no. 374 of 28 May 2003 on Ethnic Equal Treatment. The Committee handles specific complaints about differential


treatment on the basis of race or ethnic origin. The Complaints Committee can also handle complaints about a person being

unfairly treated as a consequence of complaining about differential treatment based on race or ethnic origin. Furthermore,

the Complaints Committee can initiate independent investigations of differential treatment, publish reports and make

recommendations of its own motion.

It is free of charge to make use of the Complaints Committee and any individual can complain. The purpose of the

Complaints Committee is to give access to complain about unfounded differential treatment based on race or ethnic origin.

However, the Complaints Committee cannot handle any case that may still be handled in accordance with collective

agreements, and if you can receive assistance in the complaint from your union. Consequently, the Committee can only

handle a complaint about differential treatment in the labour market if it can be handled in accordance with your collective

agreements and if your union is not assisting you. If you are not a member of a union your can complain directly to the

Complaints Committee.

Judgements of the European Court of Human Rights

Complaints about human rights violations in Denmark can be submitted to the European Court of Human Rights in

Strasbourg, provided that the violation complained about 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 settled out of court, and only very few – during the period under

review one case – are decided by judgement.

The sections on the individual human rights include a list of judgements delivered by the Court during the period from

October 2003 to October 2004 in which Denmark has been a party.

Opinions of and specific cases before the Committees

Committees have been set up under the UN human rights conventions to monitor the implementation of 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 during 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.

In addition to the UN Committees, a number of 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 presented conclusions concerning Denmark during the period under review.

The conclusions of the Committee are summarized in this Status Report in the section on Economic, Social and Cultural

Rights.

During the period under review Denmark has presented its second report to the Council of Europe Advisory Committee on

the Framework Convention for the Protection of National Minorities as well as its fifth report to the UN Committee against


Torture on 19 July 2004 and its sixth report to the UN Committee on the Elimination of Discrimination against Women on

28 July, 2004.

During the period under review Denmark has presented its 24th report concerning the implementation of the European

Social Charter and its third report on the additional protocol. The report covers the period 1 January 1999 through 31

December 2002 concerning Articles 8, 11, 14, 17 and 18 and the period 1 January 2001 through 31 December 2002

concerning Article 1 and Article 4 of the supplementary protocol.

Government initiatives

Status 2004 mentions a number of Government initiatives of relevance in a human rights context; among these, committee

work and action plans in fields where contemplated legislation or other regulation is presumed to have human rights

consequences.

Miscellaneous

Here you will find decisions from boards, councils and inspectorates, as well as independent investigations and initiatives

from non-governmental organizations.

IMPLEMENTATION OF HUMAN RIGHTS CONVENTIONS IN DANISH LAW

The European Convention on Human Rights

Act no. 285 of 29 April 1992 incorporated The European Convention on Human Rights into Danish law. Consequently, the

Convention is now part of current Danish legislation.

In connection with his visit to Denmark in the spring of 2004, the Council of Europe Commissioner for Human Rights

raised a number of critical human rights issues in his report: Report by Mr. Alvaro Gil-Robles, Commissioner for Human

Rights, on his visit to Denmark 13th-16th April 2004.

The report stresses some positive human rights initiatives in Denmark such as the increased effort to prevent domestic

violence and the Government’s efforts in recent years against trafficking in human beings. However, human rights problems

are also highlighted, especially within the area of discrimination and integration. In total, 11 recommendations are

presented.

The provisions in the Aliens Act on family reunification meet with particular criticism, including the 24 year age

requirement, cf. the Aliens Act section 9(1)(1), according to which both spouses must be at least 24 years of age in order to

obtain permission for family reunification. The 24 year age requirement is criticized for having unintended and

inappropriate consequences apart from the objective of protecting young people against forced marriages, as the restriction

seriously limits young people’s right marry and raise a family in Denmark

Concerning the requirement in the Aliens Act section 9(7) for 28 years of Danish citizenship to be exempt from the

requirement that the spouses’ aggregate ties to Denmark must be closer than to another country, the Commissioner finds

that the requirement of aggregate ties raises problems of a discriminatory nature, as the provision in practice will mainly

apply to persons with another ethnic origin than Danish, and thus raises questions of principle concerning equality before


the law

Another critical issue in the report concerns the Aliens Act section 9(4) which requires the applicant to provide a bank

guarantee of DKK 53.096, which is difficult to obtain for persons on low incomes, and furthermore section 9(5), which

basically excludes marital reunification if the person residing in Denmark has received welfare benefits according to the Act

on Active Social Policy or the Integration Act from one year prior to the application and until the issuance of residence

permit. In this connection, Article 14 of the ECHR, which mentions property as a criterion for discrimination, is highlighted.

The requirement for a bank guarantee is deemed a possible violation of the principle of equality before the law.

The report highlights Article 8 of the ECHR, which guarantees the right to respect for private and family life. However, it

also highlights the fact that the European Court of Human Rights, concerning the interpretation of Article 8, in its practice

has stated that Article 8 does not in general imply a state obligation to accept spouse reunification if the spouses have an

actual possibility of living together in another country. The Commissioner finds that the provisions of the Aliens Act do not

offer sufficient effective protection of the right to family life. As a minimum, the Act should provide a non-exhaustive list

of such cases where residence permit must be granted without the requirements necessarily being filled.

Concerning the provisions in the Aliens Act on children’s legal claim for family reunification, the report comments on the

reduction of the age limit from 18 to 15 years. The government has argued that the change in children’s legal claim to

family reunification is based on considerations for the integration of the children, including the wish to avoid cases where

the children are trained or educated in their country of origin. The Commissioner questions the actual scope of such

practices and finds that the rules have negative consequences beyond what was intended. He furthermore stresses that the

state obligation according to ICRC to protect the best interest of the child in all questions concerning him or her, and the

right of the child to grow up in a family environment, imply that children be given the possibility to apply for family

reunification. Family reunification of children over the age of 15, who are also protected by the provisions of the

Convention on the Rights of the Child (ICRC), can formally take place in accordance with the exception in section 9(c) of

the Aliens Act. However, the Commissioner finds this solution inappropriate. These children should be ensured a more

unequivocal legal position as far as their fundamental rights are concerned

Furthermore, when examining the use of solitary confinement as a disciplinary measure by the judicial system, he criticizes

the possibility to impose sentences of indeterminate duration with a condition of treatment (e.g. psychiatric). He especially

criticizes the transfer of Greenlanders sentenced to safe custody to serve the sentence in Herstedvester Prison (in Denmark).

At present, 18 Greenlanders are serving their sentences in Herstedvester. As a consequence of this arrangement, those

deprived of their liberty often lose contact with their family, suffer psychological disturbances and reduce their chances of

successful reintegration. The sentences in these cases being indeterminate can further aggravate the negative consequences

mentioned.

In general the Commissioner mentions the concerns regarding the principle of legal certainty created by the unclear

formulation of certain provisions of the Aliens Act and the many amendments, which create uncertainty for those concerned

about the applicable law and makes it hard to act accordingly. He recommends that the right to family reunification be

ensured by clear legal provisions rather than left to the discretion of the authorities. This is the basis for the Commissioner’s

recommendation to reconsider the provisions relating to family reunification.

Note: The Report is available in English at the web page of the Council of Europe http://www.coe.int.

Protocol No. 12 to the ECHR


The objective of the Protocol is to prohibit any kind of discrimination and thus ensure the individual better protection than

according to the present ancillary provision in Article 14 of the ECHR. So far, six countries have ratified the Protocol.

Denmark, however, has not yet signed the Protocol. In December 2004, the Institute for Human Rights held a round table

meeting in Copenhagen concerning the status of ratification of the Protocol in the Nordic countries.

UN Conventions

The Incorporation Committee (Inkorporeringsudvalget), which was set up by the Ministry of Justice in 1999, completed its

Report on Incorporation of Human Rights Conventions into Danish Law in 2001 (Report No.. 1407/2001). In its Report,

the Committee recommends the incorporation of ICCPR, ICERD and ICAT. For further information, please refer to Status

2003 and the explanation of abbreviations on page 213.

The question of incorporation of the Convention on the Rights of the Child into Danish law was discussed on the basis of a

proposal for a parliamentary decision presented by the opposition on 30 October 2003 (B 30). During the reading in

Parliament, and in accordance with the conclusion in Report No. 1407/2001, the Government rejected the incorporation of

ICRC.

This proposal for a parliamentary decision is a revised version of part of Proposal for Parliamentary Decision no. B 72,

2002-03 on the rights of the child in society, moved by the Socialist People’s Party, which did, however, lapse due to the

closure of Parliament’s session. Already at the first reading of B 72 on 16 March 2003, the Minister of Justice declared that

the Government at that time did not intend to incorporate ICRC. The Institute was heard in connection with Parliament’s

debate on incorporation of UN Conventions and in December 2003, in cooperation with other organizations working with

the rights of the child in Denmark, prepared a letter explaining the position of the Institute. The Institute concludes that the

arguments presented by the Incorporation Committee do not constitute sufficient reason for not incorporating the

Convention on the Rights of the Child. For further information on this please refer to the chapter on the rights of the child.

At the first reading of Proposal for Parliamentary Decision, the Minister of Justice informed that the Government does not

intend to follow the recommendations of the Incorporation Committee concerning the incorporation of ICCPR, ICERD and

ICAT. The Government is of the opinion that Denmark is committed to following the Conventions through the ratification

and that incorporation consequently is legally needless and could be politically inappropriate.

The question of incorporation was later debated on the basis of a Proposal for Parliamentary Decision (no. B 134), moved

on 25 February 2004 by the opposition, in which incorporation of four UN human rights Conventions, i.e. ICCPR, ICESCR,

ICERD and ICAT, was proposed. The proposal was rejected.

In support of incorporation of ICCPR, ICERD and ICAT, the presenters notably emphasized the arguments of the

Incorporation Committee, as well as the fact that ICCPR, ICERD and ICAT in certain cases ensure citizens better human

rights protection than the ECHR by listing more detailed rights and fewer exceptions. Furthermore, the presenters stressed

the increased attention to and awareness about the conventions that incorporation could entail as well as the catalyst effect,

which the incorporation of the ECHR had in 1992.

At the time, and in spite of the general nature of the Convention and its crucial significance for the protection of human

rights of a considerable social character, the Incorporation Committee did not recommend the incorporation of ICESCR.

However, the Proposal for Parliamentary decision B 134, highlights the interconnection between ICESCR and ICCPR as


well as the value this incorporation would have in an international context, including the possibility of Denmark presenting

itself as a frontrunner in the human rights field. In spite of perhaps vaguely defined provisions, the Convention is considered

apt for incorporation, since the Danish courts are regarded as competent to apply the necessary judicial import of the

provisions without interfering with the political balance of power. The decisive argument of the Committee to limit the

number of incorporated conventions is dismissed. On the contrary, it is stated that decisions must be made on the basis of an

assessment of each convention.

In February 2004, Parliament approved the Government’s ratification of the Optional Protocol of 18 December 2002 to

ICAT. The Protocol was signed by Denmark on 26 June 2003. The Protocol enters into force at the 20th ratification.

However, as of 1 February 2004, only 23 states have signed the Protocol; 3 have ratified it (Albania, Malta and the UK).

The Protocol commits the states parties to take effective measures to prevent torture. Furthermore, the purpose of the

Protocol is to enhance the human rights of persons deprived of their liberty. Among other provisions, the states parties shall

establish or maintain one or more national visiting bodies with access to places where persons are deprived of their liberty.

Again in May 2004, a specific discussion on the incorporation of ICAT arose. On 25 May, the opposition moved for a

parliamentary decision (Proposal for Parliamentary Decision no. B 214) on the incorporation of ICAT only, stressing the

need for a legal definition of torture in accordance with the definition of the Convention as well as the need to emphasize

the absolute prohibition of torture contained in ICAT. A slightly revised version of the proposal was presented again on 7

October (Proposal for Parliamentary Decision no. B 13).

UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

The Convention entered into force on 1 July 2003. The Convention, the purpose of which is to prevent and abolish the abuse

of migrant workers during migration, was opened for signature and ratification at a meeting of the UN General Assembly in

December 1990. So far, Denmark has not signed the Convention

Draft UN Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities

The UN General Assembly adopted resolution 56/168 concerning the establishment of an ad hoc committee for the drafting

of a UN Convention with the purpose of protecting and promoting the rights of people with disabilities on 19 December

2001. The Convention is still being drafted and not expected to be finalized for another three or four years.

The Treaty establishing a Constitution for Europe and the EU Charter of Fundamental Rights

The European Constitution consists of four parts. The first part deals with values, objectives, competences, decision-making

procedures, and institutions. It also concerns EU’s symbols, union citizenship, democratic lives, and finances. The second

part contains the “Charter of Fundamental Rights.” The third part describes the policies and measures of the European

Union. Part four contains general, concluding provisions.

The Charter does not only comprise civil and political rights, but also other areas such as the social rights of employees,

environmental protection, and the right to good governance.

With the official signing by the Heads of State and Government of the Treaty establishing a Constitution for Europe on 29

October 2004 in Rome, the Treaty has moved one step forward.


At the meeting of the European Council in Brussels 17 & 18 June 2004, the European Summit unanimously adopted the text

of the Constitution. The Treaty must be ratified in each country according to various procedures (e.g. referendum or

ratification in the national parliament), depending on the historic and legal traditions of the member states.

The Constitution cannot enter into force until one year after the ratification by the last member state. In the meantime, the

Treaty of Nice is still in force.

Implementation of the Employment Directive and the Race Equality Directive

With the purpose of implementing Council Directive 2000/78/EC establishing a general framework for equal treatment in

employment and occupation (the employment directive) and Council Directive 2000/43/EC implementing the principle of

equal treatment between persons irrespective of racial or ethnic origin (the race equality directive), the government has in

2002, 2003 and 2004 introduced new legislation and presented amendments to existing legislation.

Part of this implementation has thus happened through the Statute governing the Establishment of the Danish Centre for

International Studies and Human Rights (Statute no. 411 of 6 June, 2002), stating that the Danish Institute for Human

Rights, as an independent agency for the promotion of equal treatment, shall work to fulfil its objective, being:

”to promote equal treatment of all persons without discrimination on the basis of race or ethnic origin, including the

provision of assistance to victims of discrimination to have their complaints dealt with, with due regard for the rights of the

victims, the associations, the organizations and other legal entities, to initiate independent analyses on discrimination and to

publish reports and to make recommendations on issues relating to discriminations.” (section 2 (2) (4)).

Likewise partial implementation has happened through Act on Equal Treatment irrespective of Ethnic Origin (Act no. 374

of 28 May 2003) in which the Danish Institute for Human Rights, cf. section 10 (2) of the Act, received the mandate to

handle concrete complaints about violations of the prohibition against discrimination based on race or ethnic origin. The

Danish Institute for Human Rights opted for the establishment of the Complaints Committee for Ethnic Equal Treatment to

manage this function. Please refer to the description hereof in the chapters: Reader Guidelines (page 16), and Human Rights

in Denmark Status 2003 (page 89).

After an amendment of the Act on Prohibition against Differential Treatment on the Labour Market (Act no. 253 of 7 April

2004, now Consolidated Act no. 756 of 30 June 2004), the mandate of the Danish Institute for Human Rights and thus the

Complaints Committee for Ethnic Equal Treatment has been extended to include handling complaints concerning the labour

market as well as differential treatment based on race or ethnic origin.

Finally, in the autumn of 2004, the government presented a bill to amend the Act on Prohibition against Differential

Treatment on the Labour Market, including in the act age and disability as criteria for discrimination. With the adoption of

this bill both directives can be considered implemented.

See the chapter: Rights of persons with disabilities (page 162).

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 delivers judgements within the framework of the ECHR


and the appurtenant protocols. Both individuals and the various contracting states may submit applications concerning the

violation by a signatory state 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

heard on its merits (admission).

When the Court has convicted a signatory state of a violation of the ECHR, it is up to the Committee of Ministers of the

Council of Europe to supervise whether the state convicted adheres to the judgement. The Committee of Ministers has no

powers to force a state to comply with a judgement if it refuses to do so, but as the end consequence, the Committee of

Ministers can exclude said state from the Council of Europe. http://www.echr.coe.int/.

The Court of Justice of the European Communities

The purpose of the Court of Justice is to ensure uniform interpretation and application of EC law. The Court consists of 25

judges and eight general attorneys and deals with the following actions: infringement proceedings, action for annulment,

actions of inactivity, action for damages, appeal proceedings and references of a preliminary question. Business entities and

citizens have only limited access to bringing a case directly before the Court, as natural/legal persons must be immediately

and individually affected by EU acts. If you are of the opinion that a Danish authority or business entity acts against EU

rules, you can bring the case before a Danish court. Subsequently, the Danish court can request the Court to answer socalled

preliminary questions or to assist with decisions of judicial interpretation. In order to relieve the Court, it is assisted

by the Court of First Instance. Basically, the Court is court for the part of the European cooperation concerning the

European Community (pillar I of the Treaty). EC law is directly applicable in the member states and takes precedence over

national law. This means that citizens of the EU can refer to provisions in treaties, regulations, and directives in cases before

the national courts and demand that national provisions are not applied against them if they are contrary to EC law.

http://curia.eu.int/da/plan/index.htm

International Committees

Committees have been set up pursuant to some of the UN 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

judgements against contracting states. When a state has ratified a convention, 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

recommend or encourage 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. This right of individuals to complain constitutes a strengthening of a committee and 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 initially nominated by the individual contracting states and finally appointed by the relevant

European Council or UN 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 from 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-1966). The Committee can deal with communications from a state claiming that

another state fails to fulfil its obligations arising from the Covenant. In addition, signatory states must 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.

Denmark is to submit its fifth report to the HRC on 31 October 2005. http://www.unhchr.ch/tbs/doc.nsf

Committee on Economic, Social and Cultural Rights (CESCR)

The Economic and Social Council (ECOSOC) set up the Committee in 1987 for monitoring the implementation of the

provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR-1966). The Committee enters

into dialogue with the signatory states 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 signatory states

in drafting legislation. Signatory states 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 a right to submit communications (complaints) is being drafted. The Committee

consists of 18 experts.

The Committee’s most recent examination of Denmark is summarized 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.

http://www.unhchr.ch/tbs/doc.nsf

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-1965). 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 summarized in Status 2002, p. 97. Denmark is to submit its 16 th

and 17 th

reports to the Committee in 2005.

http://www.unhchr.ch/tbs/doc.nsf

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-1984). 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

Danish physician Ole Vedel Rasmussen.

The Committee’s most recent examination of Denmark of May 2002 is summarized in Status 2002, p. 38.

Denmark submitted its latest report to the Committee on 19 July 2004. Denmark is to submit its next report to the

Committee on 25 June 2008.

http://www.unhchr.ch/tbs/doc.nsf

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-1979). 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 discriminating women directly or indirectly. Some countries, such as Denmark, also include

the comments of non-governmental organizations in the reports. Based on these reports, the Committee makes its comments

and recommendations. Since December 2000, the Committee has been mandated 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 has 23 members.

http://www.un.org/womenwatch/daw/cedaw/committee.htm

The Committee’s most recent examination of Denmark of May 2001 is summarized in Status 2002, p. 101. Denmark

submitted its latest report to the Committee on 28 July 2004. Denmark is to submit its next report to the Committee on 21

May 2008.

http://www.unhchr.ch/tbs/doc.nsf

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-1989). 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 that 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 summarized in Status 2001, p. 124-125.

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. Denmark is to submit its first

report to the Committee relating to the Optional Protocol on the sale of children, child prostitution and child pornography no

later than 24 August 2005.

http://www.unhchr.ch/tbs/doc.nsf

Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW)

The Committee was set up in pursuance of the 1990 UN Convention on the Protection of the Rights of All Migrant Workers

and Members of their Families (ICMW-1990). The Committee monitors implementation of the provisions of the

Convention. At present, the Committee has 10 members. The States Parties shall submit periodic reports accounting for

measures taken to implement the provisions of the Convention. The Convention also gives the Committee the mandate to

consider complaints from individuals from States Parties recognizing the Committee’s mandate in this area.


Denmark has not signed or ratified the Convention.

http://www.ohchr.org/english/bodies/cmw/index.htm

The International Labour Organization (ILO) was established in 1919 and is now a specialized agency of the UN. The

purpose of ILO is to formulate and promote international labour standards and to monitor member state compliance with

these standards. This is ensured through each member state’s commitment to submit regular reports accounting for the

measures taken by each country in this area. In this connection, a number of control bodies have been established within the

ILO.

Committee on Freedom of Association (CFA)

The Committee on Freedom of Association was established in 1951. The Committee is a body under the International

Labour Organization (ILO). The Committee is not exactly a control body, but rather a complaints body with the purpose of

ensuring freedom of association.

Committee of Experts on the Application of Conventions and Recommendations (CEACR)

The Committee of Experts on the Application of Conventions and Recommendations (CEACR) was established in 1926.

The task of the Committee, among others, is to examine to which extent legislation and administrative practice in the

individual member countries comply with all ratified ILO Conventions. Thus it is the main control body within the ILO.

Member countries shall submit periodic reports to the Committee. Denmark has not yet submitted its report for 2004.

Relevant ILO Conventions in the area of human rights:

Abolition of Forced Labour and Slavery

C 29 Forced Labour Convention, 1930

C 105 Abolition of Forced Labour Convention, 1957

The Right to Organize and the Right to Collective Bargaining

C 87 Freedom of Association and Protection of the Right to Organise Convention, 1948

C 98 Right to Organise and Collective Bargaining Convention, 1949

Elimination of Discrimination Concerning Employment and Occupation

C 100 Equal Remuneration Convention, 1951

C 111 Discrimination (Employment and Occupation) Convention, 1958

Prohibition against Child Labour

C 138 Minimum Age Convention, 1973

C 182 Worst Forms of Child Labour Convention, 1999

The Rights of Indigenous Peoples


C 169 Indigenous and Tribal Peoples Convention, 1989

Migrant Workers

C 97 - Migration for Employment Convention, 1949

C 143 – Migrant Workers (Supplementary Provisions) Convention, 1975

None of the two Conventions on migrant workers have been signed or ratified by Denmark.

http://www.ilo.org

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 reaches conclusions and makes 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. Denmark has not signed the

revised European Social Charter.

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 Status 2003 in the section on the Rights of the Disabled.

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 submitted its comments to the report. The conclusions of the Committee are referred to in the section on

Economic, Social and Cultural Rights.

Denmark submitted its most recent report in May 2004. The report concerns Articles 8, 11, 14, 17, 18 of the Charter and

Articles 1 and 4 of the Additional Protocol.

http://www.coe.int/T/E/Human_Rights/Esc/

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 total of members corresponding to the number of

countries that 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 examination of

Denmark is summarized in Status 2002, p. 35. The Danish Government responded to the Committee Conclusions in August

2003. The Danish report can be obtained from the website of the Danish Parliament

http://www.folketinget.dk

http://www.cpt.coe.int/en/

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 and other initiatives to counter racism and intolerance of the member states, and to suggest additional

initiatives at the local, regional, and European level. The Commission gathers information from both public authorities and

relevant institutes and non-governmental organizations. 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 summarized in Status 2001, p. 76.

http://www.coe.int/T/E/human_rights/Ecri/

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 member states is in conformity with the

framework Convention. To do so the Committee receives periodic reports from the member states, but it can also gather

information from others, such as non-governmental organizations and individuals. The Committee reaches its conclusions

on the basis of these reports. Individuals cannot submit complaints.

Denmark submitted its most recent report on 14 May 2004. The Committee’s examination of Denmark’s first report of 6

May 1999 is summarized in Status 2001, p. 120-121.

http://www.coe.int/T/E/human_rights/minorities/

Expert Committee of the European Charter for Regional or Minority Languages

The Committee was set up in pursuance of the 1992 European Charter for Regional or Minority Languages. The Committee

is composed of one member per Party. 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 prepares evaluation reports and on this basis report 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.

The Committee visited Denmark from 12 to 15 May 2003. The report concerning Denmark can be found at

http://www.coe.int http://www.coe.int/T/E/Legal_Affairs/Local_and_regional_Democracy/Regional_or_Minority_languages/

Commissioner for Human Rights of the Council of Europe

On 7 May 1999, the Committee of Ministers of the Council of Europe adopted resolution (99) 50 on the Commissioner for

Human Rights, which establishes the mandate of the Commissioner. Article 1 of resolution (99) 50 states that the

Commissioner shall be a non-judicial institution to promote education in, awareness of and respect for human rights, as

embodied in the human rights instruments of the Council of Europe. The Commissioner shall respect the competence of,

and perform functions other than those fulfilled by, the supervisory bodies set up under the European Convention of Human

Rights or under other human rights instruments of the Council of Europe. The Commissioner shall not take up individual

complaints. Article 2 of resolution (99) 50 states that the Commissioner shall function independently and impartially.

Article 8 of resolution (99) 50 states that the Commissioner may issue recommendations, opinions and reports. While the

member states of the Council of Europe are under obligation to obey the final judgements of the European Court of Human

Rights in any case to which they are a party, the recommendations of the Commissioner for Human Rights are not binding

according to international law. As the European Court of Human Rights can thus impose its decisions on member states

according to international law, member states, including Denmark, are obliged by international law to comply with the


judgements of the Court. Other criticism, recommendations or guiding statements, etc. from international bodies, including

the Commissioner for Human Rights of the Council of Europe, which contain no actual legal obligations, must naturally

give any member state cause for considerations including the need for any changes to legislation or administrative practice.

http://www.coe.int/T/E/Commissioner_H.R/Communication_Unit/

GENERAL RIGHTS

RIGHT TO LIFE

Convention provisions: Article 2 of the ECHR, 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

No bills concerning the right to life have been introduced during the period under review.

2. Danish court decisions

Supreme Court:

No judgements concerning the right to life have been handed down during the period under review.

Eastern and Western High Courts:

No judgements concerning the right to life have been published during the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the right to life have been published during the period under review.

4. Judgements of the European Court of Human Rights

No judgements or decisions concerning the right to life with Denmark as a party to the case have been published during the

period under review.

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The Human Rights Committee (HRC).


Opinions:

The Human Rights Committee:

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

Concrete cases:

Human Rights Committee:

No complaints against Denmark for violation of the right to life have been considered during the period under review.

6. Government initiatives

No relevant Government initiatives have been launched during the period under review.

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:

Proposal for Parliamentary Decision on Incorporation of the UN Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (ICAT)

Background:

In 2001, the Incorporation Committee established by the Government completed its Report on Incorporation of Human

Rights Conventions into Danish Law (Report No. 1407/2001). The Committee recommends that ICAT be incorporated into

Danish law. The Socialist People’s Party presented Proposal for Parliamentary Decision No. B 134 on 25 February 2004

concerning the incorporation of four UN Conventions, including ICAT. The proposal was rejected

Human Rights:

It is proposed to incorporate the UN Torture Convention (ICAT) into Danish law.

Point of view of the Incorporation Committee:

The Committee characterizes ICAT as ’special’ due to the delimitation of its content (torture), while considering it ’central’

to the protection of human rights, as the Convention concerns an absolute right and furthermore is highly applicable in

practical law.


The admission of individual complaints is mentioned in support of incorporation. The comprehensive and detailed practice

of the Committee concerning individual complaints makes the provisions of the Convention ”suitable” as legal basis for the

solution of specific disputes. It is emphasized that ICAT possibly in some parts offers a better protection than the ECHR,

including requirements as to evidence concerning the risk of being subjected to torture if expelled. On this background, the

Committee recommends the incorporation of ICAT into Danish law

Purpose:

The presenters wish to incorporate ICAT into Danish law, on the basis of renewed debate in Denmark about torture which

points out the need for at legal definition of torture in accordance with the definition of the Convention as well as the need

to underline the absolute prohibition of torture in. In so doing, they refer to Parliament’s unanimous approval of Denmark’s

ratification of the Optional Protocol to ICAT (Proposal for Parliamentary Decision no. B 129) of May 19, 2004 and stress

the value that the incorporation would have both nationally and internationally.

Assessment by the Institute:

The Institute was not requested to assess the proposal.

Proposal lapsed due to end of session.

Title:

Proposal for a parliamentary decision on the incorporation of UN Human Rights Conventions into Danish law

Background:

In 2001 the Incorporation Committee established by Government completed its Report on Incorporation of Human Rights

Conventions into Danish Law (Report No. 1407/2001). The Committee recommends that ICCPR, ICERD and ICAT be

incorporated into Danish law. During debates in Parliament the Minister for Justice has declared that the Government does

not intend to follow the recommendation of the Committee. This is the basis for tabling a political discussion on the

question of incorporation.

Human Rights::

The proposal incorporates the following four UN human rights Conventions: ICCPR, ICESCR, ICERD and ICAT.

Purpose:

The proposal aims at strengthening the position of human rights in Danish law by incorporating the four Conventions. In

support hereof the proposal in particular refers to the recommendations of the Incorporation Committee. It is also stressed

that the Conventions in some cases provide the citizen with further human rights protection than the ECHR by being more

detailed and containing less exceptions. The individual will obtain a better legal position as the awareness and knowledge

about the Conventions increase and it will be easier to invoke the Conventions and contribute to them being observed.

Reference is made to the effect that was seen at the incorporation of the ECHR in 1992. Incorporation will also have an

impact on their application as the legal basis is strengthened. Not least the possibility of Denmark being a frontrunner both

nationally and internationally is stressed.

In spite of its general character as well as its crucial importance and close connection with the ICCPR, the Incorporation


Committee does not recommend the incorporation of ICESCR. The Committee finds some of the provisions vaguely

phrased and thus not easily applied in practical dispute settlement. Also, the lack of individual complaint is emphasized

since this – although not as a general rule – should be given some weight because the lack of international practice can

make it difficult to establish the content of the provisions. The presenters find the connection between ICESCR and ICCPR

decisively in favour of incorporating ICESCR as well. It is also found it politically appropriate to incorporate the convention

and thus to promote Denmark as an international frontrunner promoting human rights. Given the capability of the Danish

courts, the Convention is considered apt for incorporation in spite of any vague wordings, as the courts will be able to

undertake the necessary implication without disturbing the political balance of power. The argument to limit the number of

incorporated Conventions is dismissed. On the contrary it is stressed that any decision must be made on the basis of the

individual Convention in question

Point of view of the Government:

On the contrary, the Government argues that Denmark already complies with its international obligations and incorporation

is not legally necessary. Incorporation will only be of a symbolic value which the Government does not find politically

suitable. Furthermore, the incorporation of the UN Conventions will complicate the decision on which Conventions to

incorporate and which not to. Like the Incorporation Committee, the Government finds the ICESCR unsuited for

incorporation due to the wording of the provisions.

Assessment by the Institute:

The Institute was not requested to assess the proposal.

The proposal was rejected.

2. Danish court decisions

Supreme Court:

No judgements concerning the prohibition of torture, and inhuman or degrading treatment or punishment have been

published during the period under review.

Eastern and Western High Courts:

No judgements concerning the prohibition of torture, and inhuman or degrading treatment or punishment have been

published during 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

during the period under review.

The Parliamentary Ombudsman undertakes about 25 inspections each year and investigates whether the treatment of

persons deprived of their liberty is in accordance with the UN Convention on Torture. By Resolution B129 of May 14,

2004 on the ratification of the Optional Protocol to the Convention, Parliament presupposes that through his inspections the

Parliamentary Ombudsman meets the provisions of the Protocol on an independent national body (Chapter IV).

4. Judgements of the European Court of Human Rights


Cases declared inadmissible:

Haliti and others v. Denmark application No. 14712/03

Article 3, declared inadmissible on 19 February 2004.

The facts of the case:

The applicants claimed that their expulsion to Kosovo would constitute a violation of Article 3. They were of the opinion

that they would be persecuted and harassed in Kosovo.

The Court’s assessment:

The European Court of Human Rights found that the mere risk of inhuman or degrading treatment because of the confused

general situation in a country did not in itself constitute a violation of Article 3. Even though the situation of minorities in

Kosovo requires constant attention and monitoring, it was not clearly demonstrated that the applicants would be exposed to

inhuman or degrading treatment. Consequently Article 3 is not applicable, cf. Article 35 (3) and the application was rejected

according to Article 35 (4).

Hida v. Denmark Application No. 38025/02

Article 3, declared inadmissible on 19 February, 2004.

The facts of the case:

The applicant claimed that his expulsion would constitute a violation of Article 3. He was convinced that he would be

subjected to persecution and harassment in Kosovo.

The assessment of the Court:

As above.

Muratovic v. Denmark Application No. 14923/03

Article 3, declared inadmissible on 19 February, 2004.

The facts of the case:

The applicants claimed that their expulsion would constitute a violation of Article 3. They were convinced that they would

be subjected to persecution and harassment in Kosovo

The Court’s assessment:

As above.

Muratovic v. Denmark Application No. 14513/03.

Article 3 – declared inadmissible on 19. February 2004.

The facts of the case:

The applicant claimed that her expulsion would constitute a violation of Article 3. She was convinced that she would be

subjected to persecution and harassment in Kosovo.

The Court’s assessment:


As above.

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.

Opinions:

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment:

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

Committee against Torture:

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

Human Rights Committee

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

Concrete cases:

Committee against Torture

Cases declared inadmissible:

Jensen v. Denmark Application No. 202/2002 Article 1 (1), Article 12 and Article 16 – declared inadmissible on 5 May

2004.

The facts of the case:

The applicant was arrested on 29 April 1998 for smuggling cigarettes. On 30 April the District Court ordered solitary

confinement. This confinement was prolonged several times and the applicant remained in solitary confinement until 18

June. The applicant claimed violation of Article 1 (1) as she was subjected to solitary confinement in spite of a medical

report proving that continued solitary confinement would have grave consequences for her psychiatric situation. She further

claimed a state violation of Article 12, as no investigation had been initiated to examine whether she was subjected to

psychic torture. Finally she claimed to have exhausted all national remedies.

Opinion of the Committee:

Concerning the claim that all national remedies had been exhausted, the Committee noted that the applicant had not

complained to the Supreme Court or claimed damages under the Administration of Justice Act. The applicant maintained

that it would only be a ”theoretic possibility” to complain to the Supreme Court and that she would not be able to invoke the

rights of the Convention in action for damages. The Committee found that the applicant did not need to have claimed

damages in order to exhaust national remedies. However, the Committee further found that she should have complained to

the Supreme Court, as the mere doubt as to the effectiveness of a legal remedy does not free the applicant from exhausting

this remedy. On this basis the Committee declared the case inadmissible in accordance with Article 22 (5) (a) as all national

remedies had not been exhausted.


R. S v. Denmark Application No. 225/2003

Article 3 – declared inadmissible on 19 May 2004

The facts of the case:

The applicant was an Indian citizen. He claimed that his expulsion to India would constitute a violation of Article 3.

Allegedly he had previously been subjected to torture in India and feared that this would happen again. As a matter of

principle the State found that the case should be declared inadmissible as the applicant did not present sufficient evidence.

Alternatively the State found that the applicant had not proven that he risked persecution or torture upon expulsion to India.

His statements were unclear and incoherent. Furthermore his mother lived in India without any problems; nor did the

applicant encounter any difficulties in renting out his house before coming to Denmark.

The opinion of the Committee:

National remedies were considered exhausted. The Committee found that the medical information available did not

constitute substantial evidence in favour of the applicant. The applicant had not presented any evidence that he was wanted

by the police. Although the applicant may previously have been subjected to torture, the Committee found no obvious

reason to assume that the applicant was at concrete risk of being tortured if he were expelled to India. The Committee

therefore noted that the claim did not afford grounds to raise any relevant questions under the Convention. On this basis, the

Committee declared the case inadmissible as unfounded.

Cases decided:

M. O v. Denmark Application No. 209/2002

Article 3 – No violation, judgement of 12 November 2003.

The facts of the case:

The applicant was an Algerian citizen. He claimed that he would risk being subjected to torture if he was sent back to

Algeria and that this would constitute a violation of Article 3. He further claimed that he had already been subjected to

torture in Algeria. The State claimed that the application for residence had been rejected because the statements of the

applicant about his past and his escape to Denmark were incoherent and fabricated. Furthermore, the State found that it was

up to the applicant to prove that he would be in danger if expelled to Algeria – he had not presented any evidence to this

end. In short, the Danish authorities were not satisfied that the applicant would risk torture by being expelled

The decision of the Committee:

As to the substance of the application, the Committee noted that the risk of torture must be based on reasons beyond the

mere suspicion or general perception of torture in the country in question. The risk of torture must definitively be

predictable, real and personal. In this case, the applicant’s statements to the Danish authorities were highly incoherent. The

Committee found the conclusion of the authorities both just and in no way arbitrary. Furthermore, the Committee found that

the applicant had not proven he would be subjected to a predictable, real and personal risk of being subjected to torture. On

this basis, the Committee concluded that expulsion of the applicant would not constitute a violation of Article 3 of the

Convention

V. R v. Denmark Application No. 210/2002


Article 3 – No violation, judgement of 17 November 2003

The facts of the case:

The applicant was a Russian citizen. He claimed that there was a real risk that he would be subjected to torture if he was

sent back to Russia. This would constitute a violation of Article 3 of the Convention. In support of his claim, he stated that

he had previously been tortured, that he was an active member of a civil rights group, and that he had a previous criminal

conviction.

The State claimed that the applicant had not convincingly proven that he would be in danger by expulsion to Russia. The

State further stressed the fact that Russia has ratified ICAT and thus must be expected to afford the applicant proper

protection. Furthermore, the applicant had not proven that he was wanted by the Russian authorities and that he risked being

arrested upon return to Russia.

Decision of the Committee: As to substance, the Committee maintained that the objective of an inquiry is to assess whether

the individual will be subjected to a personal risk upon expulsion. Although the general situation in a given country is

characterized by countless violations of human rights, this is not sufficient grounds to conclude that a specific person will be

in danger of being subjected to torture. Independent reasons must be established to ascertain that exactly this individual will

be in personal danger. The Committee was not convinced that the applicant faced a real and personal risk of torture by being

expelled to Russia. On this basis, the Committee concluded that the expulsion of the applicant would not constitute a

violation of Article 3 of ICAT

6. Government initiatives

Ratification of the Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman or Degrading

Treatment or Punishment.

On the UN day in support of the victims of torture, 26 June 2003, Denmark signed the Optional Protocol to ICAT of 18

December 2002. On 19 May 2004, Parliament consented to the ratification. The Protocol enters into force when 20 states

have ratified it (Denmark is the fourth state to ratify). For further information, please refer to Status 2003, p. 30. The

Protocol obliges the states parties to take effective measures to avoid torture and aims at improving human rights for

persons deprived of their liberty

PROHIBITION OF SLAVERY AND FORCED LABOUR

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

ILO Conventions no. 29 and no. 105 on the Abolition of Forced Labour.

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 during the period under review.

2. Danish court decisions

Supreme Court:

No judgements concerning the prohibition of slavery and forced labour have been handed down during the period under

review.

Eastern and Western High Courts:

No judgements concerning the prohibition of slavery and forced labour have been published during the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the prohibition of slavery and forced labour have been published during the period under review.

4. Judgements of the European Court of Human Rights

No judgements or decisions concerning the prohibition of slavery and forced labour have been published with Denmark as a

party to the case during the period under review.

5. Opinions of and specific cases before the Committees

Relevant Committees:

The Human Rights Committee (HRC)

Opinions:

Human Rights Committee:

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

Specific cases:

Human Rights Committee

No complaints against Denmark for violation of the prohibition of slavery and forced labour have been considered during

the period under review.

6. Government initiatives


No relevant Government initiatives have been launched during the period under review.

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 unauthorized 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 authorized 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 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 order on custody and use of certain coercive measures by the police.

Please refer to the Chapter on the Rights of the Child, p. 148.

Title:

Bill amending the Act on Deprivation of Liberty and other Coercive Measures in Psychiatric Treatment.

Background:

The main elements of the draft are the proposals to introduce special door-openers and the possibility to introduce

surveillance of certain patients using personal alarm and paging systems. It is mentioned in the explanatory notes that the

purpose of the door-openers is to protect patients who can expose themselves or others to the risk of personal injury. It is

also mentioned that the use of the paging systems is limited to registering whether a patient leaves or has left the ward.

Human Rights:

The bill concerns the rights to privacy and to liberty and security of person protected by Articles 5 and 8 of the ECHR and

Articles 9 and 17 of the ICCPR on the rights to privacy and to liberty and security of person.

Assessment by the Institute:

The introduction of possible use of special door-openers involves a potential restraint of personal liberty, cf. Article 5 of

ECHR. However, such restraint pursues a legal consideration, cf. Article 5 (1) (e) of ECHR. The Institute finds that the

requirements as to necessity and proportionality are met, provided that the special door-openers are used as a less restraining

measure than other alternatives following a concrete assessment of the needs of the individual patient.

The use of personal alarms and paging systems involves a potential restraint on personal liberty, cf. Article 8 (1) of ECHR

and Article 17 of ICCPR, as the surveillance interferes with the private sphere. As mentioned in the explanatory notes, the

main underlying consideration is the security of the patient and others. On this basis, the Institute finds that the restraint

pursues a legal consideration. As to the assessment of necessity and proportionality a distinction must be made between

patients who can move alone in or outside of the hospital grounds, however still deemed to be potentially dangerous to

themselves or others, and the patients who are not allowed to leave the ward unaccompanied. The Institute finds that the

requirements as to necessity and proportionality will be met for both groups of patients provided that the medical doctor at

an individual assessment of the needs of the patient ensures that the initiation and scope of the surveillance are reasonable

and that the surveillance is brought to an end whenever it is no longer needed. The requirements of Article 8 (2) of ECHR

and Article 17 (2) of ICCPR are thus considered to be fulfilled.

In general, the Institute finds it positive that the power of decision is with the medical doctor and that the decision must be

based on the individual needs of the patient. The requirements as to necessity and proportionality thus presuppose thorough

and concrete assessments of the needs of the individual patient. The Institute finds that the draft as a whole ensures such


considerations. The Institute finds that the draft in its present form is in compliance with human rights.

However, the human rights protection of psychiatric patients could be strengthened by explicit mention in the text that these

measures presuppose a considerable risk of personal injury as well as to which patients they can be applied. Furthermore,

clear guidelines for the practical use of alarm and paging systems in relation to the patients in question should be prepared.

Opinion concerning draft order and rules of guidance on the use of force and other interference with the right to selfdetermination

published following the amendment of the Act on Social Services on 1 July 2003.

The Institute finds that in pursuance of the Act on Social Services, the order contains a number of appropriate and necessary

clarifications of the conditions for the use of force and the actual degree of interference with the right to self-determination.

Concerning the use of force in order to ensure personal care, the Institute finds that the order is not clear as to the situation

when there is a need to use force for longer than 6 months due to a continued and unchanged reduction of the person’s

functional capacity.

The Institute recommends that a provision be added concerning placement in special dwellings without consent, when the

person has not actively resisted the placement. With a view to the efficient performance of the guardianship in these

situations, it is recommended that the order makes it clear that a guardian must be appointed as early as possible in the

process and only as an exception as late as at the submission of the case to the social services board.

Bill pending.

2. Danish court decisions

Supreme Court:

No judgements concerning the right to liberty and security have been handed down during the period under review.

Eastern and Western High Courts:

No judgements concerning the right to liberty and security have been published during the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the right to liberty and security of person have been published during the period under review.

4. Judgements of the European Court of Human Rights

No judgements or decisions concerning the right to liberty and security have been published with Denmark as a party to the

case during 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 during the period under review.

Concrete cases:

No complaints against Denmark for violation of the right to liberty and security have been considered during the period

under review.

6. Government initiatives

No relevant Government initiatives have been launched during the period under review.

RIGHT TO A FAIR TRIAL

Convention provisions: Article 6 of the ECHR and Article 14 of the ICCPR. Article 47 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. Judgement

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:

Bill amending the Administration of Justice Act

Please refer to the Chapter on the Rights of the Child (page 148).

Title:

Act amending the Administration of Justice Act and various other Acts

Background:

The explanatory notes to the bill show that the purpose of the amendment is to extend access to information in the courts


and also to modernize the rules on openness in civil and criminal cases with a view to ensuring the largest possible degree

of openness and transparency in the work of the courts and thus strengthening confidence in the legal system. The bill

largely corresponds to the bill prepared by the Administration of Justice Council in its report no. 1427/2003 on reform of

civil justice II (Openness in civil and criminal cases).

The main elements consist in the proposal for general access to documents in judgements and rulings in civil and criminal

cases; i.e. in access no longer being conditioned by any legal interest, and in the rules on access to documents now available

in both the Administration of Justice Act and the Act on Administration in closed criminal cases being simplified and

gathered in the Administration of Justice Act. To balance this proposal, it is suggested not to permit the publication of

judgements and rulings in criminal cases unless the parties appear anonymous and to prohibit photographing the accused,

the defendant or witnesses on their way to or from court in a criminal case. Finally, a modification of the rules on

conducting civil cases in private is suggested in order to make the courts more attractive as a dispute settling mechanism for

parties who agree on limited openness in their dispute and would otherwise be inclined to solve this dispute through private

arbitration.

Human rights:

According to the Danish Constitution, Section 65 (1), administration of justice shall to the widest extent possible be public

and oral. According to Article 6 of ECHR, everyone has the right to a fair and public hearing. According to case law from

the European Court of Human Rights, the requirement for openness serves two main purposes: one is to protect the parties

against secret administration of justice, the other is to strengthen general public confidence in the legal system. Openness

makes administration of justice transparent and thus ensures the right to a fair trial. Another convention provision relevant

to the Act is Article 10 of ECHR, stipulating that everyone has the right to freedom of expression. This includes the right to

receive information. On the other hand, Article 8 of the ECHR protects the right to respect for private and family life and

obliges the states to protect against unwarranted passing on or publishing of confidential information about private or family

matters. However, both Article 8 and 10 are relative rights which may be subject to limitations in accordance with section 2.

The Act entered into force on 1 July 2004.

Title:

Proposed Council Framework Decision on a European Evidence Warrant for obtaining objects, documents and data

for use in proceedings in criminal matters (COM (2003) 688 final).

Please refer to the Chapter on the Right to Respect for Family and Private Life, Home, and Correspondence.

2. Danish court decisions

Supreme Court:

Danish Weekly Law Reports 2004, p. 1326, Supreme Court (U.2003.1326H). Separation of two out of ten counts in a

criminal case for consolidation with criminal cases against other persons accused of complicity in said counts. In June 2003,

the Prosecution at district court level brought charges against the former mayor, T1, and the managing director, T2, of a

municipality on ten counts, including two counts of criminal breach of trust. These two counts referred to municipal

contracts entered into with a travel agency and a contracting company in which the municipality allegedly paid an increased

price in return for this amount being used to support sports clubs in the municipality through sponsorships. Furthermore, the

Prosecution brought charges against A-D for alleged complicity in the counts of criminal breach of trust in two separate


cases concerning the travel agency (A and B) and the contracting company (C and D). The trial in the main case against T1

and T2 was expected to be concluded by the district court in 2005, whereas the cases concerning complicity were expected

to be concluded much earlier. T1 and T2 objected to the separation of the counts concerning complicity into separate cases

and demanded that the district court consolidate all three criminal cases into one, pursuant to Article 707 of the

Administration of Justice Act. Otherwise, the cases on complicity would constitute a preliminary determination of guilt,

contrary to the presumption of innocence in Article 6 (2) of the European Convention for the Protection of Human Rights

and Fundamental Freedoms (ECHR). A and C also supported a consolidation. On the other hand, the Prosecution and B and

D found that a consolidation would entail a considerable and unnecessary protraction of the cases concerning complicity,

contrary to the demand for a decision within a reasonable time; cf. Article 6 (1) of the ECHR. Alternatively, the Prosecution

– and C – claimed that the two counts of criminal breach of trust should be separated from the main case and consolidated

with the counts of complicity. The Supreme Court found that the appeal raised question of such peculiar and substantial

nature that notwithstanding Article 968 (2) of the Administration of Justice Act, it should be heard on its merits. Trials had

not been initiated in any of the cases. The district court had reserved a large number of days during 2004 and 2005 to deal

with all counts of the main case. The counts on criminal breach of trust differed substantially from the other counts of the

main case and could be dealt with separately. Considerations to expedite the cases against A-D and to a total and concurrent

determination of guilt for all involved could be met by separating the two counts of criminal breach of trust from the main

case against T1 and T2 for an overall assessment together with the cases on complicity against A-D, and thus the Supreme

Court decided that such a separation should take place.

Danish Weekly Law Reports 2004, p. 1054, Supreme Court (U.2004.1054H). 14 year prison sentence for homicide of 14year-old

daughter. The use of an interpreter who was not authorized. Documentation of antecedents as part of evidence for

motive. The interpretation of evidence by the presiding judge.

T, an Iraqi citizen, was found guilty of homicide pursuant to Section 237 of the Criminal Code, having hit his daughter on

the head and thrown her into the dock at a harbour in February 2002, causing her to drown. In June 2001, T had been

released with a probation period of two years after a sentence on 5 January 2001 for wilful assault and threats to his

daughter’s life. The Supreme Court accepted the decision of the High Court to chose an interpreter who was not authorized

and - pursuant to Section 877, part 2, no. 5 – to permit the Prosecution to document the sentence of June 2001 during the

trial as part of the evidence concerning the motive for the homicide, as this was not found to constitute a violation of Article

6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Furthermore, no procedural

error had been committed in the interpretation of the evidence of the case by the presiding judge. The Supreme Court

accepted the sentence of 14 years of prison, considering that T had killed his own daughter, to whom T had a special duty

to care, and who, after almost two years of forcible removal from the home, had recently before the killing tried to

normalize her relationship with the parents and had moved back home. It was furthermore considered of importance that T

had already committed a serious and life-threatening assault on the daughter and that the homicide was committed during

probation. The High Court decision to expell T from Denmark for life was not appealed to the Supreme Court.

Danish Weekly Law Reports 2004, p. 976, Supreme Court (U.2004.976/2H). Calculation of court fee did not constitute a

violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

A taxicab owner A was sentenced by the High Court to recognize that the withdrawal of his taxi cab licence by the Taxi

Board of Greater Copenhagen was legal and valid. At the appeal to the Supreme Court, the court registrar fixed the value of

the case at DKK 1.500.000, having multiplied by 10 the estimated yearly income of A from the taxi cab licence at DKK

150.000, pursuant to Article 228 of the Administration of Justice Act, and then calculated the court fee at DKK 45.570. A


ought the decision to the Supreme Court, especially referring to the fact that the subject matter of the case was not money

or money’s worth, that the value could not be calculated pursuant to Article 228 of the Administration of Justice Act, as the

case did not concern payment for a service, and that the calculation of the court fee was a violation of A’s rights pursuant to

Article 6 and Article 14 in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The

Supreme Court accepted that the subject matter of the case was money or money’s worth, that the court fee had been

correctly calculated, and declared that the calculation of the court fee did not constitute a violation of the provisions of the

Convention mentioned by A.

Danish Weekly Law Reports 2004, p. 2031, Supreme Court (U.2003.2031H). Sentence for gross handling of stolen goods

reduced to unconditional prison for 18 months, as the period of procedure constituted a violation of Article 6 of the ECHR.

No forfeiture of rights.

T was found guilty of handling stolen goods by having participated in buying up 10 limited liability and private limited

liability companies, which were emptied of liquid assets of about DKK 56 million in total. These assets were set aside to

pay due company tax whereby the Treasury suffered a loss or had its access to payment in full considerably reduced. The

Supreme Court accepted that considering a total assessment of the character of the handling of stolen goods, including the

fact that the companies, with the knowledge and participation of T, had been emptied of about DKK 5,5 million the

handling of stolen goods did constitute gross handling of stolen goods pursuant to Article 290 (2) and earlier Article 286 (3).

However, the assessment did not attach particular weight to the fact that no evidence had been presented as to the personal

benefit obtained by T from the case. The sentence was fixed at 18 months of imprisonment, which was considerably lower

than the sentence usually fixed for this type of crime, as the Court attached importance to the protracted procedure as cause

for mitigation of the punishment. The Court thus considered that a violation of the European Convention for the Protection

of Human Rights and Fundamental Freedoms Article 6 (1) about trial within a reasonable period of time had to be assumed,

because of the total length of the case of almost 10 years and the fact that for almost 2 years the case had not been

proceeded with.

Eastern and Western High Courts:

Danish Weekly Law Reports, 2004, p.1378, Western High Court (U.2004.1378V). Claim for compensation for unfair

dismissal to be settled through arbitration. Dismissal by the Court as settlement through arbitration did not constitute a

violation of Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms

(ECHR).

Danish Weekly Law Reports, 2004, p.938, Eastern High Court (U.2004.938Ø). An intermediary of profitable companies

denied damages for unwarranted search and seizure pursuant to Chapter 93a of the Administration of Justice Act. The

period of procedure did not constitute a violation of Article 6 of the ECHR. Police not responsible for press coverage.

In 1994, E had made a living as intermediary for so-called profitable companies, which in connection with police

investigation appeared in several group actions concerning asset stripping. On 25 April 1995, the police conducted a search

at E’s premises on charges of violating Article 286 (2) cf. Article 283 (1)(3) of the Criminal Code, and at the same time

seized a considerable amount of documents. The following day, two newspapers published articles about the case against E.

E was never questioned by the police and on 29 December 1999 the prosecution withdrew the charges against him pursuant

to Article 721 (1) (2 and 3) of the Administration of Justice Act. E claimed compensation pursuant to Article 1018b and

1018h of the Administration of Justice Act as well as for violation of Article 6 of ECHR due to the duration of procedure. It


was taken into account that on several occasions E had traded in profitable companies, that these transactions in some cases

had implied a violation of the prohibition against self-financing and that several of E’s buyers of these companies had been

convicted for these transactions. It was further taken into account that E must have been aware that these transactions

implied a violation of the prohibition against self-financing. Accordingly, E was considered, by his own conduct, to have

given cause for the search pursuant to Article 1018b, cf. Article 1018a (3) and compensation was thus rejected. No basis

was found to presume that the police had been responsible for the press coverage of the search and the seizure of

documents, or that the police had acted wrongfully conducting the search and seizure of documents. Given that the case

against E was part of an investigation concerning several large group actions, involving several cases, a large number of

persons and a very large amount of transactions, which necessitated various time-consuming investigations abroad as well,

the latter having been conducted in the period from 1996 to 1998, the duration of procedure was not considered a violation

of Article 6 of ECHR. There were no grounds for compensation to E pursuant to Article 1018h of the Administration of

Justice Act. Consequently, the prosecution was totally acquitted of the claims of E.

Danish Weekly Law Reports, 2003, p.2624, Eastern High Court (U.2003.2624Ø). The playing during a jury trial of bugged

telephone conversations between the police officer P and the informant A, who had subsequently died, not found to be a

violation of Article 6 of ECHR. P could testify as to the circumstances leading to the conversations. P was considered a

police officer with ”special duties” and it was found necessary to maintain his identity secret pursuant to Article 834, 3rd

sentence. For the same reason, it was further found necessary that P’s statement and the playing of the tapes took place

behind closed doors, pursuant to 29 (2) (2 and 3) of the Administration of Justice Act. Finally, it was decided that the name

and address of P should not be made public, pursuant to Article 848 (5) of the Administration of Justice Act, and that the

defendants had to leave the court room during the questioning of P and the playing of the tapes, pursuant to Article 848 (6)

of the Administration of Justice Act.

3. Opinions of the Parliamentary Ombudsman

Case 2004-0833-319: The case concerned a complaint over a fee for proceedings on their merits of complaints in the

Company Appeals Board concerning decisions made by the Commerce and Companies Agency. The ombudsman rejected

the case while stating that he agreed with the Ministry of Economic and Business Affairs that the complaint fee was not

inconsistent with the general principle of proportionality and Article 6 of ECHR.

4. Judgements from the European Court of Human Rights

Cases decided:

Pedersen and Pedersen vs. Denmark Application No. 68693/01, judgement of 14 October 2004.

Decision: No violation of Article 6 (1).

The facts of the case

Both applicants are freshwater fish farmers. On 20 October 1992, the first was accused of wilfully having exceeded the fish

quotas leading to dangers to the environment and personal economic benefit. The district court sentenced him to a DKK

68,000 fine as well as seizure of DKK 275,000. The High Court upheld the sentence, increased the fine to DKK 95,000 and

also seized DKK 384,000. On 26 October 1993, the second applicant was accused of similar counts. The district court


sentenced him to a fine of DKK 275,000 and seized DKK 900,000 and DKK 200,000 from his two fish farms respectively.

The High Court upheld the sentence and increased the fine to DKK 345,000 and also seized DKK 1.158,000 and DKK

240,000 from his fish farms. The two cases were consolidated and presented to the Supreme Court on 15 January 1999. The

Supreme Court upheld both sentences, however reducing the amount seized from the first applicant to DKK 240,000.

The Court’s assessment

The applicants claimed a violation of Article 6 (1), as the length of the criminal procedure was contrary to the requirement

of a public hearing within a reasonable time.

The case of the first applicant lasted a total of 8 years and 4 months and that of the second 7 years and 4 months.

The European Court of Human Rights noted that assessing whether the duration of procedure had been too long, the

particular circumstances of the case including its complexity as well as the behaviour of both applicants and the authorities

had to be taken into consideration.

The authorities emphasized that the case in itself was not complex, but several legal problems related to the case were very

complex. Among these were questions concerning EU law as well as a dispute whether a preliminary question had to be

made to the European Court of Justice. Furthermore, the authorities found that the applicants themselves had contributed to

the length of the case, as they had requested several stays of proceedings, were not able to appear in court as scheduled and

had raised questions of a principle nature concerning EU law during proceedings.

The applicants emphasized as their main point that they had simply used the legal means at their disposal.

Initially, the Court noted that the aspects relating to EU law could to a certain degree be considered complex and time

consuming. The Court recalled that only delays which are the fault of the state can justify a claim that the requirement of a

hearing within reasonable time has been violated. Furthermore, any delay caused by the applicant’s representative is the

responsibility of the applicant.

The Court found that the first applicant and his counsel were responsible for having protracted the case by approx. 4 years

and 3 months, and the second applicant and his counsel by approx. 4 years and 4 months.

The Court did not find the period of procedure either at the district court or at the High Court to be unreasonably long. One

argument was that it was in the best interest of the applicants that the district court awaited the decision of similar ongoing

cases and that the applicants had protracted the proceedings unduly. All things considered, nothing either at the district

court or at the High Court pointed to the state having unduly delayed the proceedings.

The case lasted 2 years and 1 month at the Supreme Court. The questions relating to EU law alone took 1 year and 7 months

to decide, before the Supreme Court arrived at the conclusion that there was no need to present a preliminary question as the

relevant act was clearly consistent with EU law. In the view of the court, this period was not unreasonably long. The rest of

the proceedings at the Supreme Court showed no sign of the authorities having unduly protracted the proceedings.

Therefore, the overall assessment of the Court was that the period of procedure in the case did not go beyond what can be

considered reasonable. Consequently, there was no violation of Article 6 (1).


Cases declared inadmissible:

Petersen (Troels) vs. Denmark Application no. 6315/02

Article 6 (1) declared inadmissible on 13 May 2004.

The facts of the case:

The case was about asset stripping. The applicant claimed that the criminal charges against him were not duly proceeded

with and the duration of procedure thus too long.

The opinion of the European Court of Human Rights:

The European Court of Human Rights found that in spite of a period of 5 years and 10 months from the start of the case

until its final conclusion, the requirement in Article 6 for a decision within a reasonable period of time had not been

exceeded. The Court argued that the period was no longer than what was considered reasonable given the circumstances of

the case. Consequently there was no violation of Article 6 and the application was declared inadmissible pursuant to Article

35 (3).

Senator Lines vs. all EU member state, Application No. 56672/00

Article 6 declared inadmissible on 10 March 2004, as the applicant was not a victim.

The facts of the case:

The applicant had been sentenced to a considerable fine for violation of EU competition rules, particularly Article 81 and

82. The applicant claimed that the EU had violated his rights pursuant to Article 6 (1) of the ECHR, be denying him a fair

hearing as well as violating the presumption of innocence pursuant to Article 6 (2) by letting an administrative body (the EU

Commission) decide his faith before any judicial body had considered the case. The applicant claimed that the European

Court of Human Rights is competent to decide whether EU legislative acts are consistent with the Convention, and that the

member states are individually and collectively responsible for the actions of the EU:

The Court’s assessment

The Court found that Article 34 required the applicant to be a victim in order to appear before the Court. The Court of First

Instance had agreed with the applicant on 30 September 2003 there was no real violation. Consequently the applicant could

not claim to be a victim in the sense of the Convention. Therefore, the European Court of Human Rights dismissed the case

pursuant to article 34. The Court thus avoided to consider the very pertinent question whether the EU member states can be

held individually and collectively responsible for the acts of the EU and whether the European Court of Human Rights is

competent to decide whether EU legislative acts are contrary to the Convention.

Cases settled out of court:

Petersen (Lizzie) vs. Denmark Application No. 70210/01.

Decisions concerning admissibility

Article 6 (1) – accepted to be heard on its merits on 18 September 2003.

The facts of the case:


The applicant had worked at a fish processing plant since 1970. In 1984 she reported an injury to the National Board of

Industrial Injuries, claiming compensation for what she considered an industrial injury. The Board did not recognize the

claim. The applicant then approached the Social Appeals Board, which finally dismissed the claim on 5 April 1989. On 18

June 1992, the applicant brought the claim to the Eastern High Court, where she on 27 September succeeded in her claim.

The Supreme Court upheld this decision on 24 September 1998. The National Board of Industrial Injury then calculated the

compensation, which was paid in instalments in 1999 and 2000. Because of disputes concerning the degree of the

impairment, the full compensation was not paid until 8 March 2000.

The applicant claimed that the period of procedure had been too long and the case had not been sufficiently promoted. This

constituted a violation of Article 6 (1).

The Court’s assessment

The Court found that the circumstances of the case needed further investigation and consequently the case was accepted to

be heard on its merits.

However, the case was never actually heard as the parties made a settlement on 28 January 2004 pursuant to Article 39 of

the Convention. The government offered to pay the sum of DKK 113,000 to the applicant. She accepted this. The Court

found the settlement consistent with the Convention and struck it from the list of cases pending on 22 April 2004

5. Opinions of and specific cases before the Committees

Relevant Committees:

Human Rights Committee (HRC)

Opinions:

Human Rights Committee:

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

Concrete cases:

Human Rights Committee:

No complaints against Denmark for violation of the right to fair trial have been considered during the period under review.

6. Government initiatives

Report No. 1436/2004 on reform of civil justice III.

Based on the Ministry of Justice’s request in January 1998 and its terms of reference for a general reform of civil justice, the

Administration of Justice Council presented its report No. 1436/2004, an interim report about access to the courts. Among

other things, the report examines the general financial schemes of importance to the citizens’ access to the courts, e.g. the

rules about court fees, legal costs, legal aid, free legal aid, and legal expenses insurance


Assessment by the Institute:

As to the Council’s deliberations whether the parties should be heard in connection with the court’s decision on legal costs,

the Institute points out that the parties to a civil litigation have the right to contradiction pursuant to Article 6 of the ECHR.

In theory, access to contradiction is assumed to comprise decisions on legal costs.

It should therefore be considered making access of the parties to contradiction in these cases explicit in the Administration

of Justice Act.

The Institute notes that Article 6 of ECHR contains a requirement for justification of civil decisions. The requirements

concerning decisions on legal costs, which the Council presents in chapter 7 of the report, are considered consistent with the

requirements in Article 6 of the ECHR. It should, however, still be considered whether these requirements for justification

should be made explicit in the Administration of Justice Act.

The Institute welcomes the suggestion of the Council to gather and streamline the conditions for applying for subsidies from

private legal aid institutions, thus providing increased transparency in the allocation of subsidies and better access to the

same. However, in order to ensure the citizens effective access to the courts, the Institute points out the need to allocate the

necessary financial resources to these institutions so they can fulfil their objective towards society. The existing

arrangements do not cover the needs, as the subsidy for legal aid offices for the last 15 years has hardly followed the

inflation rate, whereas the expenses for legal aid from lawyers has increased significantly.

Report on the Military Criminal Code, Administration of Justice Act and Disciplinary Act

Report No. 1435/2004

On 12 May 1999, the Minister for Defence appointed a committee to revise the Military Criminal Code and Administration

of Justice Act. The purpose of this revision was a general assessment of military criminal and administration of justice

arrangements on the basis of the general development in society, including the new tasks of the military as well as in regard

to Denmark’s international and human rights law obligations, including ECHR. The starting point of the Committee’s work

is that on-duty military staff both in Denmark and abroad should as far as possible be placed on an equal footing with

civilian citizens, so the personnel will only suffer any peculiar limitations of ordinary procedural guarantees, etc. if in the

individual case it can be argued that this is absolutely essential. According to its terms of reference, the Committee further

had to assess whether the access of military leaders and prosecutors to investigate and pass sentence in both criminal and

disciplinary cases should be changes; especially whether the access of the prosecutors to sentence to prison should be

abandoned; whether possible judicial control of sentences and disciplinary means handed down or applied should be

improved; and whether the mandate of military leaders and prosecutors to hand down sentences could give rise to problems

concerning independence and legal capacity.

Government report: “A changing world – new threats, new answers”

This report, published in June 2004, describes the government’s plans to counter terrorism. The Government’s strategic

efforts focus on three main goals, the first two being the immediate fight against existing terror networks and groups,

including cutting off the funding for their activities and obstructing their access to weapons of mass destruction, and a more

long term effort to counter the underlying reasons for terror. The final goal is for Denmark to ensure a robust preparedness,

focusing on protection of the citizens and vital interests of society against terrorist attacks. The government stresses that

fighting terror must take place with respect for human rights and basic freedoms and within the rule of law, and at the same

time underlines that there is no contradiction between human rights and efficient efforts against terror.


Government leaflet “Quid Pro Quo”

The leaflet contains 57 initiatives, based on the principle of “quid pro quo.” In this way, the government wants to indicate

what kind of behaviour from citizens and businesses the government wants to reward or punish. One example is “discount”

for good behaviour when serving time and longer sentences in the case of repeat offenders.

NO PUNISHMENT WITOUT 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 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 recognized by civilized nations.

1. Bills

Title:

Draft bill on enforcement of certain criminal decisions within the European Union

Please refer to the chapter on Right to Respect for Family and Private Life, Home and, Correspondence.

2. Danish court decisions

Eastern and Western High Courts:

No final judgements concerning the prohibition of punishment without law have been published during the period under

review.

Supreme Court:

No judgements concerning the prohibition of punishment without law have been handed down during the period under

review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the prohibition of punishment without law have been published during the period under review.

4. Judgements of the European Court of Human Rights

No judgements or decisions concerning the right to no punishment without law have been published with Denmark as a

party to the case during the period under review.


5. Opinions of and specific cases before the Committees

Relevant Committees:

Human Rights Committee (HRC)

Opinions:

Human Rights Committee

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

Specific cases:

No complaints against Denmark for violation of the right to no punishment without law have been considered during the

period under review.

6. Government Initiatives

No relevant Government initiatives have been launched during the period under review.

THE 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 wellbeing

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 on bill amending the Offensive Weapons Act and draft provisions on body search

The bill to amend the Offensive Weapons Act contains a sharpening of the Act’s provisions concerning the possession of

knives, daggers, or similar sharp or pointed objects suited to inflict bodily harm. The bill introduces a general prohibition

against carrying a knife, etc., including clasp knives with blades longer than 7 cm in generally public places typically

frequented by young people. This is supplemented by provisions for body search by increasing the police mandate to


perform body search, search people’s clothing, and other objects.

The Offensive Weapons Act

The Institute finds that the extension of the types of weapons covered by the proposed prohibition as well as the extension

of the scope of the prohibition, including geographically, proportional and necessary in a democratic society, thus being

consistent with the requirements of Article 8 (2) of ECHR. However, the Institute finds it questionable whether the bill as

presented fulfils the requirements according to human rights norms concerning transparency and predictability.

Body search

According to the bill, body search is not conditioned by a suspicion of concrete criminal acts or concrete suspicion of an

individual The Institute finds that this raises a number of questions of general public interest in relation to Article 8 of

ECHR. The Institute must refer to the problem that citizens with comparable need for protection against arbitrary exercise

of authority and for review of the legality hereof are not treated equally. In the view of the Institute, it is not obvious that the

citizen who is in a place with a presumed increased risk of committing serious criminal acts should have a different or lesser

need for protection against any arbitrary exercise of authority than the person who is included in the investigation of a

committed crime without being charged or under suspicion. Likewise, it remains difficult to understand that one citizen’s

need for an independent review of any interference with his/her private sphere should merit lesser protection than that of

any other citizen.

Act No. 217 of 31 March 2004

Title:

Draft order on the registration and logging of information about telecommunication by telenet and

telecommunication providers as well as practical assistance to the police in connection with encroachment of mail

secrecy

Background:

According to the order on logging, telecommunication and Internet operators as well as larger housing associations shall

register addresses of sender and receiver, place, and time for all e-mails. In other words, who has been communicating with

whom, when, and for how long? Such registration constitutes a comprehensive infringement of the protection of the

individual citizen’s private life, and therefore requires that the infringement be founded on a real possibility for more

efficient investigation. As the suspects who are the target of these new means of investigation can relatively easily avoid

being registered, it appears not to have been rendered probable that this comprehensive infringement of practically all

citizens’ private lives is necessary for the investigation of the police.

The Order on Logging is part of the Governments IT-efforts against terrorism, issued pursuant to Article 786 (4) (2) of the

Administration of Justice Act, introduced by Act No. 378 of 6 June 2002, obligating telecommunications operators to

register and log certain information about their customers’ telecommunications traffic. The information is to be stored for

one year. Article 786 ensures that information about such traffic is available for investigation and prosecution for serious

crimes.

The purpose of the Order is to define the content of the telecommunications and Internet traffic to be logged. Furthermore,

the operators are obliged to establish a 24-hour contact point for the police. The logging obligation only comprises data on

traffic and not information about the content of the communication. The obligation includes telephone number, date, time,


and length of conversations, as well as text and multimedia messages and information about the sending masts used. As far

as Internet traffic is concerned, the logging obligation comprises moment of log-on and log-off, as well as assignment of socalled

IP addresses. However, the obligation does not comprise information about sites visited, chat rooms, etc. The Order

comprises both telenet and telecommunication operators, i.e. all operators offering electronic transfer of communication.

However, some smaller associations are totally or partially exempt from the logging obligation and from providing a contact

point. It is suggested that the rules enter into force on 1 July 2005 and on 1 July 2006 for those partly exempt from the

logging obligation.

Human rights

The proposed Order authorizes infringement of the protection of personal information and thus relates to the protection of

the right to respect for private life pursuant to Article 8 of ECHR. Such infringement may be legitimate, provided there is a

balance between the common interest and the interest of the individual citizen. The European Court of Human Rights has

recognized society’s need to protect national security in cases where the statutory basis fulfils human rights requirements as

to quality and precision and where the infringement also fulfils the human rights principle about proportionality. It has,

however, been stressed that the legal guarantees must be enjoined in case of infringements taking place as part of

intelligence work.

Assessment by the Institute:

Potentially, the Order will entail a systematic infringement of the protection of the right to respect for private life for all

citizens justified by the considerations for investigation, while at the same time exempting a number of persons. This seems

neither proportional nor effective, as a suspect can easily avoid being logged, while a large group of random citizens will

have their data logged and stored. On this basis, proportionality seems not to be rendered probable.

The importance of the Order living up to the requirements of the Act on Personal Data and ECHR is highlighted by

considerations for data protection and legal protection of the citizens. The Institute finds that the general provisions of the

Act on Personal Data on security must be supplemented, not least as the Order concerns private persons who have not

previously been obliged to store large amounts of personal information for longer periods of time. More precise security

guidelines concerning the requirements for storing and accessing data are needed.

Note:

Denmark signed the Council of Europe Convention on Cyber Crime on 22 April 2003.

Title:

Draft bill amending the Act on Establishment of a Central Register for DNA profiles and the Administration of

Justice Act. (Extension of the register for personal DNA profiles, requirements as to indications in connection with

intimate search, etc.)

Background:

The Central DNA profile register was established in 2000 and has proven an efficient tool for solving crime. The purpose of

the bill is to extend the use of the register for investigation by creating the same conditions for obtaining and registering

DNA profiles and the same rules for deleting information in both the DNA profile register and the fingerprint register.

According to the present rules for obtaining and registering DNA profiles in the register, conditions are stricter than those

applying to fingerprints. When registering DNA profiles, the individual must be charged with certain especially serious

crimes such as homicide, rape, aggravated assault, and robbery. This requirement as to the crime is proposed modified to


offences carrying a possible sentence of 18 months prison or more. The bill proposes that capacity to decide to take saliva

samples from the suspect should be with the police through an addition to Article 792 c (1) of the Administration of Justice

Act. It is further suggested to amend Article 3 of the Act on the DNA Profile Register concerning deletion of information,

making it the rule that a person is deleted from the register when reaching the age of 80.

Human rights

At present, no human rights case law on the registration and storing of DNA profiles is available. However, the Institute

finds that taking biological samples from a person to be used for DNA analysis and registering the DNA profile constitutes

a potential violation of the right to respect for private life as protected by Article 8 (1) of ECHR. Therefore, the suggested

legislation must comply with human rights requirements concerning legitimate purpose, necessity, and proportionality as

regulated in Article 8 (2).

Assessment by the Institute:

Previously, in its comments 9 November 1999 concerning the bill on the Establishment of a Central DNA Profile Register,

the Institute has stated that fingerprints have a certain similarity to DNA profiles. Although so far, DNA profiles are not

considered to carry information, the technical development in DNA analysis should already at this stage take into

consideration that at a later stage a DNA profile may be used for other purposes than mere personal identification. This is a

problem for all the rules suggested, however especially so concerning accused but unconvicted persons. The Institute

acknowledges that when adopting Council of Europe Recommendation No. R(92)1 concerning the use of DNA profiles in

criminal procedure, Denmark made a reservation, but is still of the opinion that the Recommendation should be followed in

the absence of any case law from the European Court of Human Rights. This would mean that DNA profiles from accused

individuals should be deleted from the register when charges do not lead to a conviction. In this light, the suggested repeal

of Article 3 (1) (2) of the Act is problematic, since, as a rule, persons who have been acquitted or where charges have been

withdrawn or in case of absolute discharge will remain registered until they reach the age of 80.

Bill pending.

Title:

Draft bill on enforcement of certain criminal decisions within the European Union

Background:

The purpose of the bill is to implement Council Framework 2003/577/RIA on enforcement in the European Union of

decisions about freezing of assets or evidence and two draft Council Framework Decisions about mutual recognition of

fines and decisions about confiscation. The main elements of the bill concern rules about the enforcement by Danish

authorities of decisions about seizure, fines and confiscation made in other EU countries, however with a request for

enforcement in Denmark. Basically, the bill stipulates that the enforcement of such decisions must take place without any

further review of the decision upon which the request for enforcement rests, unless any of the reasons for refusal

specifically defined in the bill is applicable. Any review is limited to reviewing whether the request for enforcement is

consistent with the requirements of the framework decisions and the bill.

Human rights:

The bill provides a statutory basis for certain infringements on rights protected by human rights conventions. In particular,

the bill raises questions concerning the right to respect for private life and correspondence. From a human rights

perspective, Section 77 of the Danish Constitution and Articles 7 and 8 of ECHR are relevant.


Assessment by the Institute:

The question is whether Denmark, who is actually encroaching on a right protected by the ECHR, without any review can

assume that the legal guarantees of the convention have been observed in the country requesting enforcement. The Institute

finds that Danish authorities may incur responsibility by acquiescence if concrete circumstances indicate that the legal

guarantees are not complied with and they do not investigate this. The Institute recommends that it is made explicit that any

claim that ECHR has been violated in the country requesting enforcement can be heard, ensuring that such claims can come

forward. The Institute welcomes that the draft has considered the ne bis in idem principle.

Seizure of documents, computers, etc. can constitute a potential violation of Section 77 of the Danish Constitution, which

also prohibits censorship, and Article 8 of the ECHR. In the case of seizure of writings that have not been published, a

thorough review of whether the criteria for seizure have been met must be undertaken. The Institute finds that it should be

clear from the text that the courts must undertake such thorough review of the seizure in cases regulated by Section 77 of

the Constitution.

According to Article 8 (2), infringement of the right to respect for private life and correspondence can be legitimate if it

takes place ”in accordance with the law”, is necessary in a democratic society and is proportional. Article 8 (2) contains a

requirement as to predictability in the application of the law. The Institute doubts whether the Act fulfils the requirements as

to predictability and access to knowledge about the law, as a number of the actions which may lead to the request for seizure

are unclear and formulated in very general terms. Predictability is further weakened by the fact that requests for seizure may

be based on the criminal law of other countries notwithstanding that this law in not known to the person in question.

Therefore, the Institute doubts that the requirements of ECHR about access to knowledge about the law and predictability

have been fulfilled by the suggested formulation of the bill. The Institute furthermore doubts that the country requesting the

enforcement will always be able to assess the proportionality of the enforcement, as the severity hereof can not always be

evaluated beforehand. The Institute recommends that the procedure for enforcement of decisions about seizure should be of

such nature that a review in accordance with Article 8 (2) is possible.

Enforcement of a fine may constitute a potential violation of Article 7 (1) of ECHR prohibiting punishment without law. In

theory, this provision is considered extraterritorial in connection with prison sentences and the Institute finds that such

extraterritorial effect can apply in connection with other criminal decisions from other countries. Article 7 requires legal

provisions, leading to punishment, to be predictable and accessible. Considering what is stated about extraterritorial effect,

it must be assumed that Danish authorities, before enforcing any foreign fine, among others things must review whether the

requirements as to accessibility and predictability have been met. The actions that can lead to enforcement of a fine in

Denmark based on a foreign decision are not clear either, and the Institute recommends that the Act states that Danish

authorities must review the basis for the adjudication of the fine

According to the circumstances, confiscation can fall within the scope of Article 7 of ECHR. The Institute doubts whether

the reasons for confiscation stated in Article 32 of the draft live up to the requirements for clarity and predictability.

Bill pending.

Title:

Departmental draft bill about procurement of ”child certificates” in connection with the employment of staff etc.

Background:


The purpose of the draft is to strengthen the efforts against sexual abuse of children. The bill calls for specific rules to be

formulated according to which public authorities and private associations must ensure the procurement of a so-called ”child

certificate” prior to the employment of persons who in the course of duty will have direct contact with children below the

age of 15.

Human rights:

The draft relates to Article 8 of ECHR.

Assessment by the Institute:

The Institute has no human rights comments to the draft in its present form.

Draft pending.

Title:

Act amending the Act on Nationality

Background:

According to the explanatory notes, the purpose of the bill is to fulfil an agreement between the Government and the Danish

People’s Party concerning limitation of access to naturalization according to Article 3 of the Act on Nationality. In future,

Article 3 shall only apply to Nordic citizens, and persons convicted of serious crimes detrimental to society can be deprived

of their Danish citizenship unless they will thereby become stateless. Other foreigners are thus referred to apply for

naturalization pursuant to Section 44 of the Danish Constitution.

Human rights:

According to the Universal Declaration of Human Rights, Article 15, everyone has the right to a nationality. The right to a

nationality is regulated in several international conventions like The Nordic Agreement on Nationality (1969), the UN

Convention on Reduction of Statelessness, which ensures every child the right to a nationality (1961), and the European

Convention on Nationality (1997). Article 24 (3) of ICCPR as well as ICRC further affirms the right of every child to a

nationality.

The principle of the right to a nationality is included in the European Convention on Nationality (ECN) as inspiration for

interpreting the material provisions of the Convention. As stated in the explanatory notes to the Convention, the right to a

nationality can be considered the positive formulation of the obligation to avoid statelessness, which is also included in the

Convention and which has become part of international customary law.

The right to a nationality is not directly included in ECHR; however, Article 7 of ECHR concerning retroactive punishment

can still be applied when someone is deprived of his/her nationality because of a criminal conviction. The proposed

provision about deprivation of Danish nationality does not constitute a punishment according to Danish law and its

inclusion in the criminal code is consequently not proposed. This indicates that it is not a punishment in the sense of the

Convention. Furthermore, deprivation of nationality can be covered by Article 8 of ECHR about the right to respect for

private life. It appears from the notes to the bill that it considers international commitments to be respected.

Assessment by the Institute:

Since the regulation on nationality of 1776, persons who are born and bread in Denmark have a legal claim on nationality

when they reach the age of majority. In 1950, this automatic acquirement of nationality was replaced by a requirement of a


declaration which a.o. applied to all foreigners between the age of 21 and 23 who were born in Denmark and had

maintained residence here. In 1968, this was changed and it was no longer required to have been born here, but only to have

had residence here for at least 10 years prior to reaching the age of 18 or 21 years. The consideration has persistently been

that it was in the best interest of both the young people and the state to grant nationality. In 1999, a condition of clean

criminal record was introduced and according to the bill it will only be possible for Nordic citizens to obtain nationality by

declaration.

The Institute finds that the bill, which constitutes a breach with more than 200 years of national practice concerning young

people born and raised here, is not in keeping with developments concerning a person’s right to a nationality, since the

practice for naturalizing those young people who grew up here or came when they were very young will exclude them from

Danish nationality because they do not comply with the ordinary requirements for naturalization. One questionable issue on

the right to nationality concerns language skills for young people who can not meet the requirements of the bill due to a

functional disability, while not qualifying for an exemption according to circular of 12 June 2002: “being unable to talk or

only possessing a limited oral language”.

Problems may arise for these young people if they have not had relations to their (parents’) country of origin, to the extent

that this country has regulations on forfeiture of nationality because of lack of affiliation to the country, cf. Article 8 of the

Act on Nationality. If they lose their nationality as adults for this reason, they will not be covered by the special rules about

naturalization of persons who are born stateless, as intended according to the comments to the bill,. According to the

comments, their applications will have to be treated as usual, following the existing guidelines for naturalization. However,

the Institute finds it necessary to ensure that young people who grow up in Denmark do not become stateless.

As mentioned, the rules of the bill are not in compliance with the trend otherwise seen in nationality legislation in European

countries towards facilitating the possibilities of second and third generation foreigners to obtain the nationality of the

country of residence.

Reference:

Act No. 311 of 5 May 2004.

Entered into force on 1 July 2004 (Article 1, no. 1-5, 8, and 9. Article 1, no. 6, and 7 the day after publication in the Danish

Law Gazette)

Title:

Bill amending the Aliens Act and the Act on Integration

Background:

The main human rights elements are the proposals to limit the right to family reunification for children by reducing the age

limit from 18 to 15 years for minors’ claim for family reunification; the introduction of a 10-year qualifying period for

family reunification for men convicted of violence against a former spouse or cohabitant, and finally tightening of the rules

concerning residence permit for religious preachers by demanding an affiliation to the Danish National Evangelical

Lutheran Church or another resident recognized religious organization, as well as demanding a relevant education or

background. In addition, a new condition is introduced according to which the best interest of the child shall count in favour

of granting residence if the child’s residence permit has expired because of a protracted stay outside of Denmark. Finally,

statutory basis is introduced for refusing residence when the granting of residence will be against the best interest of the

child. The purpose of the bill is to avoid that religious preachers obstruct integration in Denmark, given that certain religious

leaders and preachers also in many cases have a generally influential and normative function. Another purpose is to ensure

that foreign minors have as large a part of their upbringing as possible in Denmark in order to promote integration in


Denmark. The Government points out that it especially wants to avoid that parents send their children on “re-education

visits” with the purpose of influencing them through the values and norms of the home country. It is also the intention to

protect foreign women who come to Denmark through family reunification against violence from their spouses who have

residence here. The Government points out that the number of foreign women in the Danish shelters for women is

disproportional, and that it is a well known fact that certain Danish men are responsible for several foreign women’s stay in

shelters for battered women.

Human rights:

In accordance with general human rights principles, including ECHR and ICCPR, children have a right to protection against

encroachment from their parents or guardians. In the case of serious encroachment, the principle has been formulated in

Article 19 of ICRC.

The right to family life is a fundamental human right, protected by Article 8 of ECHR about the right to family life and

Article 17 of ICCPR. Furthermore, Article 23 and Article 7 (1) of ICRC offer special protection to family life and the unity

of the family. Pursuant to ECHR, ICCPR and ICRC, state infringement of the right to family life can be necessary and

required. It is thus generally recognized that an absolute right to family reunification in a specific country cannot be inferred

from international human rights conventions.

The state commitment to protect especially women against domestic violence follows from the obligation to ensure women

equal right to effective enjoyment of the right to life and the right to personal security, cf. Article 2, 5, 8, and 14 of ECHR.

This duty to eliminate violence against women also follows from Article 2 (f) of ICEDAW, which obliges states to take all

relevant measures to abolish customs and practices which involve discrimination against women. Of further relevance to the

bill are Article 18 of ICCPR and Article 9 of ECHR which protect the freedom of religion and freedom of conscience.

Assessment by the Institute:

It is positive that the bill contemplates further attention to the duty of authorities to maintain the best interest of the child as

their first concern in all measures concerning the child. However, the Institute recommends that a new provision is

introduced to the effect that the authorities as a matter of routine have a duty to hear the child in case of an application for

family reunification between parents and children. Concerning children who lose their Danish residence permit during

visits abroad, the Institute recommends that the scope and effect of both forced so-called re-education visits to and voluntary

stays in the home country of the parents be further investigated before this forms the basis for restrictions of the right to

regain residence. It is the opinion of the Institute that ECHR stipulates that it be the rule rather than the exemption that

young people who lose their residence due to a stay outside of Denmark can obtain a new residence permit. The Institute

welcomes that by the introduction of the 10-year qualifying period for men who have committed violence against a spouse,

new steps are taken to protect foreign women against domestic violence in Denmark. The Institute finds that when applying

the 10-year qualifying period, the authorities must make a concrete assessment whether the woman’s right to selfdetermination

and family life will also be infringed upon. The Institute also welcomes that steps are taken to codify practice

concerning foreign clergy’s right to enter Denmark. The Institute recommends that the immigration authorities enter into

dialogue with the various religious organizations in Denmark, in order to make room for diversity in the exercise of freedom

of religion. It is further recommended that the bill be presented for comments to the religious organizations and other

associations to whom the proposed amendments may be of relevance.

Reference:

Act No. 427 of 9 June 2004.


Entered into force on 1 July 2004.

Title:

Proposed framework decision on logging of data treated and stored in connection with delivery of publicly available

electronic communication services and of data available in public communication networks in order to prevent,

investigate, disclose, and prosecute crime and criminal acts, including terrorism.

Background:

The purpose of the proposal is to ensure that law enforcement authorities in the member states obtain increased access to

include data about telecommunication in the prevention, investigation, disclosure, and prosecution of crime. The main

content of the proposal is a duty to implement national legislation, which requires logging of so-called traffic data for the

above-mentioned purposes for a period of no less than three years. According to the basic report by the Ministry of Justice,

implementation of the framework decision in Danish law will be ensured by the Danish anti-terror legislation and the

ensuing order on logging presented for comments in the spring of 2004.

Human rights:

The decision relates to Article 8 of the ECHR, as the systematic and comprehensive logging of the communication pattern

of all EU citizens for a period of up to three years falls under the protection of Article 8 (1) of the ECHR, and any

infringement of this protected right must follow the conditions stipulated in Article 8 (2). Consequently, the conditions

concerning statutory authority, a legitimate purpose and necessity of the logging in a democratic society must be fulfilled in

order for the logging to be legal. Furthermore, the infringement must be proportional, i.e. the means be reasonable in view

of the stipulated purpose and be less intrusive compared to more intrusive alternatives.

Assessment by the Institute:

In its comments to the bill on anti-terror measures of 23 November 2001 and in its comments to the ensuing logging order

on 13 May 2004, the Institute has already pointed out that it is doubtful whether the human rights demands concerning

necessity and proportionality in relation to the concrete infringement of private life are met in connection with the extended

obligation to log all users of telecommunications and Internet communications.

The logging obligation is generally problematic as it constitutes an infringement of the private life of all citizens, regardless

of any specific suspicion. It is doubtful whether such a radical logging obligation is a proportional means to reach the

objective of fighting crime. Less radical measures could be used instead, e.g. logging of telecommunications data based on a

court order of people under concrete suspicion for criminal acts. A general logging also constitutes a breach with EU

standards for protection of private life up till now. In some concrete cases the logging obligation is problematic because

third parties who are not under suspicion, but with whom a suspect communicates will be included in the logging

information used for investigation. These persons will be subjected to infringement of their private life when information

about their telecommunications and Internet communication is exposed in the course of an investigation.

On this basis, the Institute does not find it probable that systematic logging of all citizens is proportional to the objective

pursued, or that it must be considered a necessary measure in a democratic society. Consequently the Institute does not find

the framework decision in accordance with the requirements of proportionality and necessity. In addition, the Danish rules

for logging of telecommunications traffic are not yet in force and have furthermore met substantial criticism in their present

form. It is therefore not clear what consequences the framework decision will have on Danish law. The Institute therefore


equests that new comments to the framework decision be requested when the Danish logging rules, including exceptions,

have been formulated.

Title:

Proposed Council Framework Decision on a European Evidence Warrant for obtaining objects, documents and data

for use in proceedings in criminal matters (COM (2003) 688 final).

Background:

The purpose of the Council Framework Decision is to ensure a faster and more efficient cooperation against crime between

the EU member states to obtain existing objects, documents and data for use in proceedings in criminal matters pending in

another EU member state.

It is proposed that the EU member states shall offer each other legal aid by immediate recognition of a court order from

another member state, e.g. for search or seizure. In order to make the criminal law cooperation more efficient it is proposed

that court orders be standardized by using forms and that deadlines for complying with the orders are introduced.

Furthermore, minimum protection for both issuing and complying with court orders will be introduced. Finally, the

possibilities for rejecting a court order will be limited.

Human rights:

The relevant human rights provisions are Section 77 of the Danish Constitution on the right to free speech, Article 6 of the

ECHR on the right to a fair trial, and the right to protection of private life in Article 8.

Assessment by the Institute:

The Institute finds it positive that the principle of prohibition of self-incrimination as protected by Article 6 of ECHR is

respected in connection with the enforcement of the European evidence warrant, cf. Article 12 (1) (b) of the proposal.

It is also positive that Article 15 of the proposal ensures that the principle that no one can be convicted twice for the same

matter (the ne bis in idem principle) which is protected by Article 4 of ECHR, Protocol 7, is also a condition for recognizing

and enforcing the European evidence warrant.

However, the Institute must point out that Section 77 of the Danish Constitution contains a prohibition against censorship.

Case law shows that it is not contrary to Section 77 to seize manuscripts, including not yet published manuscripts, by court

order. Nevertheless theory states that seizure of not yet published manuscripts requires a thorough judicial review to

determine whether the criteria for seizure have been fulfilled. In this connection the Institute wishes to point out that

according to the proposal, the member state enforcing the order is basically not supposed to review a European evidence

warrant. The Institute notes that this can lead to Danish authorities enforcing orders, although these have no legal basis in

Danish law according to the principles in the Danish Administration of Justice Act, and without the requirements for

judicial review stipulated in Section 77 of the Constitution necessarily being fulfilled. According to Article 8 of the ECHR,

the right to respect for private life is protected by the Convention lbeit not as an absolute right. An infringement of this right

may be legitimate if human rights conditions like pursuing a legitimate purpose, objectivity and proportionality are fulfilled,

cf. Section 2 of the Article. Theory states that the demand for statutory authority includes a demand for predictable

application of the law. A search of a person’s home constitutes a potential infringement of this person’s right to private life.


Given that the national rules for seizing evidence vary substantially, it will in each specific case be very difficult for a

citizen of one member state to predict his/her legal rights concerning infringement of his/her private life, e.g. in the case of

search if it is conducted on the basis of a European evidence warrant, as this can be issued in another member state

according to the national legislation of this country. It is doubtful whether an infringement pursuant to Article 8 (2) of the

ECHR based on a European evidence warrant can live up to the human rights requirements for legality. The proposal

presupposes that the individual states comply with the requirements for issuing evidence warrants in the ECHR. This

general presupposition, however, does not automatically free Denmark from responsibility if a decision is made in such a

way that the enforcement of a criminal decision is contrary to the ECHR or other human rights rules. This means that in

case any concrete matter in the case indicates that the legal guarantees in the ECHR have not been complied with, Denmark

could incur responsibility by acquiescence, if no review is undertaken of the conditions for the measure requested. It is

furthermore understood that human rights norms must be included ex officio by the court in criminal cases. According to

Article 15 of the proposal on rejection of recognition or enforcement, member states can only reject recognition or

enforcement of an evidence warrant from another member state if it violates the ne bis in idem principle or if according to

the legislation of the issuing member state any immunities or privileges apply making the enforcement of the warrant

impossible. The Institute therefore recommends that Article 15 be changed in such a way that the evidence warrant can be

rejected by the enforcing state if enforcement would result in any violation of that state’s human rights commitments.

Title:

Bill amending the Act on deprivation of liberty and other coercive measures in psychiatric treatment. Please refer to

the chapter on right to liberty and security.

Title:

Council Decision on tackling vehicle crime with cross-border implications

Background:

According to Article 29 of the Treaty on European Union (Amsterdam Treaty), the Council shall promote the fight against

terrorism and organized crime through closer cooperation between police forces in the member states. According to Article

2 of the proposed decision, the objective is to achieve a common strategy and improved cooperation within the EU with the

aim of preventing and combating cross-border vehicle crime, which often proves related to other forms of crime such as

trafficking in drugs, firearms, and human beings.

One way of combating this form of international crime is exchange of information about stolen vehicles. The proposal is

intended to improve this tool. It is suggested that law enforcement authorities in member states – after the theft of a vehicle

has been reported – make sure that the stolen vehicle is immediately reported to the Schengen information system and,

when possible, to Interpol’s stolen motor vehicle database, cf. Article 6 of the draft decision. The report is immediately

withdrawn from the databases as soon as the reason for the report ceases, or as soon as the owner of the vehicle withdraws

the report on the theft.

Human rights.:

ECHR Article. 8.

Assessment by the Institute:

The Institute welcomes that measures are taken to combat cross-border vehicle crime in order to protect the rights of others.

However, the Institute does find that the storage and exchange of the information needed in these cases between different


authorities could constitute a potential infringement of the right to respect for private life, protected by Article 8 of the

ECHR. In this connection, the Institute wishes to stress that if any of the information stored is of a personal character, then

the rules for storage and exchange – in order to comply with the statutory authority of Article 8 (2) of ECHR - should be

very precise and detailed and furthermore contain a specification that the information will be used exclusively in accordance

with the objective pursued.

Title:

Draft bill on transfer of information about treatment when psychiatric patients commit serious crimes.

Background:

In order to use existing knowledge and to avoid future crime, the proposal will enable the transfer of personal information

about earlier treatment, without the consent of the patient, when a psychiatric patient has committed a serious crime. It also

follows from the comments that in order to improve the quality of psychiatric treatment and to avoid repetitions, the aim is

to investigate a number of cases in order to establish whether there is a connection between the treatment offered to

psychiatric patients and the crime that they have committed or are under suspicion of having committed. Concrete statutory

authority is established to enable the transfer of personal information about the group of patients in question without consent

to the working group established to conduct the investigation as well as internally between the members of the working

group.

Human rights.

The proposal concerns the right to respect for private life. This right is protected by convention in Article 8 of ECHR and in

Article 17 of ICCPR. Furthermore, the Council of Europe Convention for the Protection of Individuals with regard to

Automatic Processing of Personal Data, Article 6, is relevant in stating that, as a rule, personal information, e.g. concerning

health issues, may not be processed electronically

Practice of European Court of Human Rights has established that the exchange of information between different public

authorities without the consent of the person(s) concerned can constitute a violation of the right to respect for private life.

The European Court of Human Rights has often stressed the importance of the protection of medical information as an

element of the respect for the right to private life including considerations for the general confidence in the health system. In

its practice, the European Court of Human Rights has maintained that as far as the publication of personal data is concerned,

states have a varying margin of discretion to find the balance between considerations for investigation and prosecution and

considerations for the protection of private life.

Assessment by the Institute:

Transfer without consent of personal information about treatment no doubt constitutes a serious violation of the right to

respect for private life. However, the exception in Article 8 (2) of ECHR comprises interventions undertaken e.g. to prevent

crime. On this basis, the purpose of the intervention is assumed to fulfil the human rights condition that infringement of a

right protected by convention must be necessary in a democratic society. With the draft bill, the required statutory authority

for the intervention is established and consequently the intervention must be considered legal. In spite of the intensity of the

intervention, the Institute finds that considerations for prevention in the situations mentioned outweigh considerations for

the right to respect for private life. The Institute therefore finds that the intervention does comply with the human rights

requirement for proportionality. Still, the Institute recommends that - in view of the proportionality of the intervention - the

consent of the person involved should be sought before any transfer of the information mentioned in the draft bill, and that

this provision be added to the text of the bill.


The Institute welcomes the fact that transfer of personal information is subject to considerable limitations and effective

guarantees against abuse; e.g. the fact that information can only be divulged to and within the working group; the fact that

the draft bill is limited in time until June 30 2010; the fact that only treatment concerning a limited group of people will be

investigated; and the fact that The National Board of Health has the mandate to decide on opening any investigation, etc.

In pursuance of Article 2 of the draft, an investigation can be initiated only where there is probable cause to believe that

persons have committed serious violent crimes. This fact increases the seriousness of the intervention. The Institute does not

find this necessary for the quality of the investigation and recommends that, due to the human rights principle of

proportionality, this provision be changed in such a way that an investigation can not be initiated until it has been

established that the person in question is mentally ill and has been sentenced for a crime.

Concerning Articles 1 and 6 of the draft, the Institute finds that they comply with the right to respect for private life as

established by convention, while recommending a modification of Article 2, as mentioned above.

Draft pending.

Title:

Opinion concerning equal right to divorce for both sexes.

Please refer to the Chapter on the Rights of Women.

Title:

Draft bill amending the Aliens Act (Accession to the Eurodac Regulation and the Dublin Regulation)

Background:

By this draft, the Folketing consents to the Government’s approval on behalf of Denmark of Danish accession to the

Eurodac and Dublin Regulations, cf. Section 19 of the Constitution. Furthermore, the draft provides the national legislative

basis for the imminent Council decision to approve the parallel agreement between Denmark and the EU on Danish

accession to and participation in the two Regulations.

The purpose of the Eurodac Regulation is to ensure effective use of the provisions in the Dublin Convention of June 15

1990 containing rules to determine which state is responsible for processing a request for asylum. Thus one of the objectives

of the Dublin Convention is to ensure that a request for asylum filed within the territory of the member states is only

processed in one of the member states. In order for the Dublin rules to work efficiently, it must be possible to identify the

individual asylum seeker effectively and securely. Consequently, the Eurodac system opens for electronic comparison of

fingerprints registered in the individual member states.

Human rights:

The draft bill concerns Denmark’s participation in the Dublin Regulation and the Eurodac Regulation and relates to Article

8 of the ECHR.

Assessment by the Institute:

Due to the scope of the draft and its relatively complicated contents as well as the very short deadline together with some

errors completely altering the sense of the draft, the Institute has decided to deal with a few selected elements, including a


number of selected aspects concerning implementation.

It is noted with regret that the draft does not contain a particular section on the relations to international (human rights)

conventions.

Concerning the formulation of Article 4 (1) in the Dublin Regulation, it must be noted that the provision lacks any actual

legal content. As early as 1999, the Institute pointed out this problem as it also applies to Article 12 of the Dublin

Convention. Also, Article 20 of the Regulation is poorly formulated; using the term ”transfer” where it should have said

”return,” depriving both the provision itself and the draft of any meaning.

The Institute finds that it ought to be carefully analyzed whether the provisions contained in Article 6 of the Parallel

Agreement on Denmark’s access or obligation - according to the circumstances - to submit questions of legal effect or

interpretation of the Parallel Agreement (including the provisions in the Eurodac and Dublin Regulations) to the European

Court of Justice (ECJ) as a preliminary question would be in compliance with Article 20 of the Constitution, whereupon it

concludes that this is not the case. The Institute can thus not rule out that in reality ”powers” will be delegated – to wit,

judicial power – to the EU in the sense used in Section 20 of the Constitution.

The Institute finds certain provisions concerning authority and complaints in relation to the implementation of the Eurodac

Regulation quite unclear. The Institute recommends that for the sake of due process it should be contemplated to introduce

access to appeal decisions to exchange fingerprints, etc. Obviously, the fact that pursuant to the proposed provision in

Article 58c (3), the Danish Data Protection Agency is to “supervise the processing and use of the information transferred

and received according to the rules in the Eurodac Regulation” cannot replace an actual individual access to complain.

Article 4 (1) and Article 8 (1) of the Eurodac Regulation prescribe that national procedures for logging fingerprints will be

determined in accordance with the protective measures provided in ECHR and ICRC. The draft states that Denmark has

acceded to these two instruments. However, this in itself is no guarantee that the two conventions will be adhered to in

practice. Therefore, the Institute would have liked to know which concrete deliberations the Ministry for Refugees,

Immigrants and Integration may have had on this issue. Within the limits given, it has not been possible for the Institute to

undertake any deeper analysis of whether the draft is formulated in such a manner that it effectively prevents violations of

the two conventions. For the moment, the Institute must consequently limit itself to the assumption that the Danish

procedure will be administered in such a way that any violation of conventions is avoided. Furthermore, the Institute would

appreciate that the Ministry considers replacing the concept ”refusal” with the more appropriate concept “return” about the

decisions made referring to Article 4 (4) of the Dublin Regulation.

Bill pending.

2. Danish court decisions

Supreme Court:

Danish Weekly Law Reports 2004, p. 1765, Supreme Court (U.2004.1765H).

No reason to overrule the refusal of the Immigration Services’ of continued residence for a Turkish father, who was entitled

to contact with his daughter.

F, a Turkish citizen, entered Denmark in November 1997, where he immediately married a Danish citizen M and therefore

obtained a residence permit. In October 1999 they had the child D, and in June 2000 M separated from F. Subsequently, F


had contact with D twice a week and in October 2000 M obtained custody of D by decree of judicial separation. In January

2001 F’s contact was set at 2 hours a week. In March 2001, the Immigration Services refused to extend F’s residence and

work permit, a decision which was upheld by the Ministry for Refugees, Immigrants and Integration, I, in February 2002. In

the decision I stressed that F’s contact was so limited in character and scope that the withdrawal of the residence permit

could not be considered particularly onerous to F and D. F brought the decision of I before the High Court, where he

claimed that I had committed procedural errors and that expulsion would constitute a violation of Article 26 of the Aliens

Act and Article 8 of ECHR. The High Court upheld the plaintiff’s claim that I’s decision was invalid. Considering all the

circumstances, the Supreme Court found no grounds to determine that I’s decision was based on procedural errors which

could justify the invalidity of the decision. Furthermore, as no grounds were found to overrule the discretion exercised by I

in the decision in February 2002, I was acquitted. (Dissenting judge(s)).

Danish Weekly Law Reports 2004, p. 1110, Supreme Court (U.2004.1110H)

Decision on expulsion after four years’ imprisonment for drug-related crimes abrogated due to considerably altered

circumstances.

In 1995, a 30-year old Tanzanian citizen, A, obtained family reunification with his wife, a Danish citizen who had met A

when she was in Tanzania as a volunteer in 1989-90. In 2001 he was sentenced in appeal proceedings to four years’

imprisonment for drug-related crimes committed in 1998-2000 and expelled in perpetuity. He was then living in Denmark

with his wife and their two children, both minors. His parents, sisters and brothers lived in Tanzania. In 2002, when his

sentence came to an end, the question on abrogation of the expulsion was brought to the court pursuant to Article 50 of the

Aliens Act, and in 2003 the district court abrogated the expulsion. The High Court upheld the decision referring partly to

the fact that the wife persisted in the marriage which was demonstrated by frequent visits to the prison and to the fact that

the couple had had their third child during the sentence, and partly to the fact that there was now information showing that

the wife had no possibility to be posted as a development consultant or missionary to Tanzania. The majority of the

Supreme Court found that under the circumstances presented it was effectively excluded that the family continued their

family life in Tanzania, and endorsed the decision to abrogate the expulsion pursuant to Article 50 of the Aliens Act as well

as Article 26 (1) (4) and (2) as these provisions had to be interpreted in the light of Article 8 of the ECHR. (Dissenting

judge(s) voted to uphold the expulsion).

Danish Weekly Law Reports 2004, p. 1050, Supreme Court (U.2004.1050H1) 6 years imprisonment for attempted homicide

of spouse and aggravated violence. Expulsion.

T, who was 36 years old at the time of the crime, was sentenced for attempted homicide of his wife by several stabs with a

knife and for violence pursuant to Article 245 of the Criminal Code by having stabbed his brother-in-law several times with

a knife. The Supreme Court set the punishment at 6 years imprisonment due to the severity of the attempted homicide,

which put the wife in mortal danger, causing permanent injury, and due to the fact that T had at the same time committed a

serious assault with a knife. T, a Turkish citizen, had entered Denmark at the age of 25. He had been married since 1991 and

the family included a 10-year-old child from the present marriage and a child of the wife from a previous marriage. Other

than that, T had no family in Denmark, but he had sisters, brothers and other relatives in Turkey.

The High Court’s decision on expulsion was upheld. In this connection it was stressed that notwithstanding the affiliation of

the accused to Denmark, including especially that he has an underage daughter living here, the crimes committed are so

serious that it will not be a violation of Article 8 of the ECHR to expell him. Besides, the circumstances stated in Article 26


(1) of the Aliens Act are not considered to invalidate expulsion.

Eastern and Western High Courts:

Danish Weekly Law Reports 2004, p. 2456, Eastern High Court (U.2003.2456Ø)

3 years of imprisonment for gang rape. Expulsion in perpetuity. Compensation for emotional trauma of DKK 75.000.

T1, 27 years old, and T2, 24 years old, were found guilty of rape pursuant to Article 216 (1) of the Criminal Code and other

sexual relations than intercourse pursuant to Article 224, cf. Article 216 (1) by, together with two other offenders, having

forced F into a wood, where they over a longer period of time physically held and compelled F to intercourse, anal

intercourse and oral intercourse. T1 and T2 were sentenced to 3 years of imprisonment with due consideration to the

aggravation introduced by Act no. 380 of 5 June 2002. (Dissenting judge(s) in favour of 3 years and 6 months of

imprisonment). T1, who was a Turkish citizen, had come to Denmark in 1999. He was married to a Danish woman of

Turkish descent, with whom he had a child of 4. T1 was expelled in perpetuity, as the circumstances mentioned in Article

26 of the Aliens Act did not conclusively invalidate expulsion, and expulsion would not be a violation of ECHR either.

Considering the circumstances of the case as well as the increase in the level of compensation for emotional trauma, which

was the purpose of Act no. 463 of 7 June 2001 amending the Act on Damages, F was awarded compensation for emotional

trauma of DKK 75.000. As far as T1 is concerned, the decision has been appealed to the Supreme Court with the permission

of The Danish Board of Appeal Permission.

3. Opinions of the Parliamentary Ombudsman

File No.: 2004-1473-644

In this case, the complainant had been refused an extension of his visa. His lawyer claimed that the refusal constituted a

violation of Article 8 of the ECHR. The Ombudsman found no reason to criticize the decision, noting at the same time that

it could also not be criticized that the Ministry of Refugees, Immigrants and Integration had not found the refusal a violation

of Article 8 of ECHR. In his decision the Ombudsman did not comment any further on the ECHR.

4. Judgements of the European Court of Human Rights

Poulsen vs. Denmark Application No. 14469/03

Article 8 – removed from the table of cases on 6 May 2004.

The facts of the case:

The complainant of Ghanaian descent is married to a Danish citizen. Therefore she received a temporary residence permit.

On 3 May 2002, however, the Danish Immigration Service refused to extend the permit, as the husband of the complainant

was imprisoned and consequently the spouses were no longer cohabiting. The decision was upheld by the Refugee Board

and the complainant was ordered to leave the country no later than 6 April 2003. The complainant claimed that the decision

to expell her was a violation of the right to family life in Article 8 of the ECHR.

However, before the European Court of Human Rights could rule on the case, the Government informed the Court that the

complainant had received a temporary residence permit. On 18 March 2004 the complainant informed the Court that she


withdrew the case.

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 during the period under review.

Concrete cases:

No complaints against Denmark for violation of the right to respect for family and private life, home, and correspondence

have been considered during the period under review.

6. Government Initiative

Report No. 1446/2004 on personal names

Background:

In December 2002, the Ministry of Justice set down a Committee on the Act on Personal Names which presented its report

in June 2004, report no. 1446/2004 on personal names, proposing a revision of the Act on Personal Names in force since

1981. So far the legislation has been based on the principle of protection of family names. This principle means that you can

only obtain permission to use a protected middle or family name if you have sufficient family affiliation to the name. This

also applies to the common Danish family names ending with –sen. Based also on the debate on integration, where the

question has been raised whether it should be possible for persons who do not have any family relation to the name to take

on a common Danish family name such as Jensen, Hansen or Nielsen the Committee has been commissioned to reassess the

rules in force. The report consequently considers the rules on which first names, middle names and family names persons

with residence in this country can acquire.

Human rights :

The draft bill amending the Act on Personal Names and the suggested liberalized rules may in concrete cases promote

integration. Furthermore, the draft relates to Article 8 of the ECHR.

Assessment by the Institute:

In general, the Institute welcomes the suggested and considerable liberalization of the Act on Personal Names as it takes

into consideration societal development, e.g. concerning gender equality and the altered demographic composition. The

Institute also welcomes the suggestion to modernize the rules concerning change of name in connection with change of sex.

Human rights case law establishes that questions concerning a person’s name are included in the protection in Article 8 of

ECHR due to the significance of the name for self-identification and indication of family affiliation. The report takes into

consideration both human rights and EU legislative requirements to personal name legislation.

It is also noted that, in case of expiration of the name protection (Article 6 of the draft), if the name of a person or a family

is no longer used in this country because the person carrying the name has left the country, it can not be excluded that the


European Court of Justice would consider this an obstacle to the free movement of EU citizens and thus a violation of EU

law.

Finally the Institute notes that for practical reasons the Committee on the Act on Personal Names has not suggested any

changes in the tasks of the officer of the civil register. Although the text “The Danish National Evangelical Lutheran

Church” can be removed upon request of the applicant, the Institute wishes to point out that some people dissociate

themselves from the practice where issues concerning the giving and changing of names are managed within the Danish

National Church. This applies both to people who have left the National Church and people belonging to other religious

communities, and a solution to this problem should be found.

White papers concerning amendments to the Aliens Act

The white papers concern Act No. 1204/2003 amending the Aliens Act (Amending the rules concerning aggregate ties in

case of reunification of spouses and strengthened measures against forced marriages) and Act No. 283 of 26 April 2004

amending the Aliens Act (Amending the rules for granting residence permit based on employment following the

enlargement of the EU on 1 May 2004, etc.).

Government report of 22 September 2004 on the Report of Mr. Alvaro Gil-Robles, Commissioner for Human Rights of the

European Council, dated 8 July 2005.

Background:

The report responds to the criticism and recommendations from the Commissioner concerning immigrants and appears

following the ensuing discussion on whether the Danish immigration legislation is in conformity with the ECHR. The report

thus deals with the part of the Commissioner’s report dealing with immigration.

Main contents:

Concerning the 24 year age requirement for reunification of spouses, the Government finds the rule necessary to achieve the

objective, i.e. to limit forced and arranged marriages and offer young people an efficient protection against outside pressure.

The Commissioner’s criticism that the rule extends ”far beyond the target” is thus repudiated.

Concerning the requirement of 28 years of citizenship to be exempt from the requirement in the Aliens Act that the

aggregate ties of a Danish-foreign couple must be stronger to Denmark, the report concludes that the 28 year age

requirement is still not contrary to the principle of equality. The reason given is that the 28 year age requirement is an

exception to the requirement for aggregate ties and reflects a standardized assessment of the aggregate ties, in which a

certain length of Danish nationality is necessary. It is taken for granted that a Danish citizen who is 28 years old has such

ties to Denmark that it presents no concern not to require certain aggregate ties. The Government therefore finds that the

differential treatment between citizens based on the length of their citizenship takes place on the basis of objective criteria.

Furthermore, as an answer to the Commissioner’s concerns with regard to respect for the principle of equality before the

law and Article 14 of the ECHR concerning the requirement for the deposit of DKK 53.096 and permanent employment, it

is noted that the requirement for a deposit does not entail a demand that the applicant must have DKK 53.096, as a bank

guarantee, typically costing about DKK 1.500 per year, will suffice. It is also noted that the requirement for permanent

employment is made not only by Denmark but also by other EU countries and is allowed for in the EU rules on family

reunification. Against this it is stressed that the requirement for a deposit and permanent employment can be derogated from

in cases where family reunification must be permitted as a consequence of Denmark’s international obligations.


Concerning the change of the age limit from 18 to 15 years – contrary to the principle in ICRC - the report stresses that the

best interest of the child was indeed the primary reason for the change. Furthermore, the change is intended to avoid that

children are sent on “re-education” visits to the home country of the parents thus being separated from the parents.

The government is not convinced that there are only a few cases of re-education visits, while admitting that the actual scope

of the problem is uncertain; however the government assesses the problem to be growing. It is further noted that children

between the age of 15 and 18 are not excluded from applying for family reunification although they do not have a legal

claim to family reunification and that the rule does not constitute a prohibition against issuing residence permit for these

children.

The last and crucial recommendation relating to immigrants, concerning the right of refugees to family reunification

pursuant to Article 8 of ECHR, which the Commissioner recommends be explicitly mentioned in the law, will be followed

by the government, making it clear in the text of the law and not only in the comments to the law that considerations for the

right to family life shall be taken into consideration when deciding the access of refugees to family reunification. It is,

however, stressed that there may be family life without this necessarily implying a duty on behalf of Denmark to permit

family reunification pursuant to Article 8 of the ECHR. Decisive for this assessment is the degree of affiliation of the family

life to Denmark. The report presents criteria for when refugees who have married after their escape can obtain family

reunification, even though the normal requirements are not met. The Immigration Service will reassess the few cases where

this may be relevant to ensure that all decisions are correct. Furthermore, the government will strengthen the guarantees for

the independence of the Refugee Board.

The overall conclusion of the report is that the legislation concerning aliens is not contrary to human rights, and

consequently the government does not see any need to change the rules on family reunification, including the 24-year age

requirement, the 28-year age requirement in connection with the requirement for aggregate ties to Denmark, the requirement

for deposit or the age limit for family reunification of children

The government is of the opinion that the administration of the Aliens Act is in accordance with ECHR as this Convention

is understood and applied by the European Court of Human Rights.

7. Miscellaneous

Report by the Institute for Human Rights on family reunification in Denmark

In view of the tightening of the rules in the Aliens Act on spouse reunification in 2002, the Institute decided on its own

proposal for a parliamentary decision to carry out a human rights analysis of the rules of the Aliens Act on spouse

reunification as well as an investigation of the administrative practice which has to be part of assessing whether the state of

the law is in accordance with Denmark’s international commitments. The introduction of the 28-year age requirement in

November 2003 and the criticism from the Human Rights Commissioner of the Council of Europe in his report of 8 July

2004 led to an expansion of the ongoing analysis. The analysis was published on 4 October 2004.

Main content:

The report contains a thorough analysis of whether the legislative requirements for spouse reunification may cause

infringements on the right to family life. It is also assessed whether the actual differential treatment based on the

requirement for aggregate ties and the28-year age requirement are contrary to the prohibition against discrimination based


on citizenship and race or ethnic background.

As far as the 24-year age requirement is concerned, the Institute finds that the present version of the rule – not in itself, but

together with the requirement for aggregate ties - results in infringements on the right to family life as protected by Article

8 of the ECHR. The administrative practice whereby consideration is only given to the relationship to other children than

those of a different marriage, with whom the resident has normal contact, which by the way may not be sufficiently

authorized by the comments to the Act, is also an infringement of the right to family life. It is noted that Article 8 of the

ECHR and Article 3 of the ICRC prescribe that consideration is given to resident children of the resident and the applicant

as well as to children of a different marriage or step-children of the resident when deciding whether to make an exception

from the normal rules for spouse reunification. The Institute furthermore finds that a refugee who has married a person from

his original home country, when still at risk of persecution in the home country, will have a right to enjoy his family life in

Denmark with his foreign spouse. According to the assessment of the Institute, the present administrative practice according

to which it is required that the couple when entering into marriage had a legitimate expectation that they could settle

together in Denmark or that they shall have lived together at the same address in Denmark, leads to infringements on the

right to family life.

The report also states that the actual knowledge about the prevalence of forced marriages in Denmark is uncertain. The

statistics available are considered relatively ambiguous.

It is also the opinion of the Institute that the administration of the requirement for a financial deposit of DKK 53.096 leads

to infringements on the right to family life. It is the assessment that the rule that the resident spouse must not have received

social benefits constitutes an unjustified and not proportional differential treatment of persons contrary to Article 14 of the

ECHR together with Article 8 of the ECHR on the right to family life.

Concerning the requirement for aggregate ties, the conclusion is that together with the 28-year age requirement this

constitutes discrimination based on ethnicity and race in two cases. One concerns differential treatment between Danish

citizens with ethnic Danish background and Danish citizens with another ethnic background. The Institute also assesses that

this is the intention of the provisions. The other case concerns differential treatment between persons born with a Danish

citizenship and persons born in Denmark without a Danish citizenship and who have grown up in this country. Furthermore,

the rules lead to discrimination between refugees and immigrants.

The conclusion is that – as a consequence of the 28-year age requirement - the differential treatment of Danish citizens is

contrary to the principle of non-discrimination in the European Convention on Citizenship, Article 5 (2) as Danish citizens

of 28 years of age will be subject to differential treatment – concerning derogation from the aggregate ties requirement –

based on the length of their citizenship.

Based on the human rights requirement for predictability, the Institute recommends that the legislative and administrative

authorities aim to increase the predictability of the rules for spouse reunification, e.g. in the form of a yearly report with

examples from practice.

Statistics: Refusal of reunification of spouses (2003)

. • In 2003, 1.133 persons were refused reunification of spouses.

. • In most cases the reason was that the couple did not fulfil the aggregate ties requirement

. • This was the case for 681 persons in total in 2003. 274 of these were Danish or Nordic citizens.


• 335 refusals in 2003 were because of the minimum age requirement of 24 years. 194 of these were Danish or

Nordic citizens.

. • The requirement for a suitable dwelling for reunification of spouses was the cause of 66 refusals in 2003. 44 of

these refusals concerned Danish or Nordic citizens.

. • This tendency will continue in 2004 if assessed based on the records from the first 6 months of 2004 of the

Danish Immigration Service. In this period, 124 refusals were based on the minimum age requirement of 24 years.

Source: Danish Immigration Service.

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

Title:

Proposal for a parliamentary decision on the prohibition of wearing culturally-determined headgear

Background:

The aim of the proposal is to prohibit public officers, who have contact with the citizens, from wearing culturallydetermined

headgear when performing their work. The prohibition comprises those kinds of headgear and scarves which are

not comprised by the Judeo-Christian culture, i.e. both scarves and other headgear worn for traditional, political or religious

reasons as explained in the comments to the proposal.

Human rights:

The proposal concerns the right to manifest one’s religion.


Assessment by the Institute:

- Freedom of religion. The Institute finds that the suggested prohibition aims to limit scarves and other headgear the use of

which is conditioned by religion, especially Islam. Such limitation in the right to manifest one’s religion basically

constitutes an infringement of the right to freedom of religion. According to the Danish Constitution, Section 67 which

protects the freedom of religion, this freedom can only be limited to protect ”good morals or public order.” Freedom of

religion is also protected by Article 9 of the ECHR and Article 18 of the ICCPR, which constitute an absolute and thus

mandatory right, cf. Article 18 (3). The right to manifest one’s religion, however, is a relative right, which can be limited in

accordance with Article 9 (2) of the ECHR and Article 18 (3) of the ICCPR, if the conditions of necessity, proportionality

and legal basis as well as the condition that the infringement has a legitimate purpose have all been fulfilled. In the case

Dalab vs. Switzerland, the prohibition of a teacher’s use of a scarf in school was considered consistent with the freedom of

religion, as the infringement was legitimized by society’s interest in equality and non discrimination, as well as the concern

that pupils aged 4 to 8 years are easily susceptible. The decision can not be directly transferred to a Danish context since

Denmark – as opposed to Switzerland – is not a secular state. The Institute finds that, according to present legal conditions

in Denmark, a general prohibition against manifesting one’s belief can not be issued. In concrete cases, a prohibition against

public officers’ wearing of headgear could be reasonable and proportionate.

- Prohibition of discrimination based on religion. Headgear which originates from the Judeo-Christian culture is exempt

from the prohibition. The proposal introduces a differential treatment of citizens based on their ethnicity and religion which

both the Constitution and human rights prohibit. If such differential treatment is to be considered legitimate is must be based

on objective and reasonable grounds and be proportional and pursue a legitimate purpose. The presenters argue for the

prohibition indicating that scarves are “offensive to” “ordinary people”. It is not clear what the concept offensive means

and the group of persons concerned are loosely defined as ”ordinary people”. This argument does not fulfil the requirement

of being based on objective and reasonable grounds. Nor can ordinary moral principles justify a limitation of the freedom of

religion as defined in the Constitution.

The prohibition is also justified by a concern for the integration of Muslim girls. The Institute finds that many Muslim girls

wear a scarf and are not necessarily regarded by everyone as an obstacle to integration. It is doubtful whether there is a

general need for protection and the prohibition will be felt like an infringement of the right to self-determination of these

girls

- Differential treatment in the labour market. Differential treatment in the labour market is prohibited in Danish law

according to the Act on Prohibition of Differential Treatment in the Labour Market, cf. Article 2 (1) of the Act. A

prohibition to wear a scarf as a public officer entails a risk of direct differential treatment and discrimination, as it

is clear from the comments that the aim is only to cover persons with another ethnic background than Danish and

another religious background than Christian or Jewish. Furthermore, the prohibition will also contribute to the

creation of a structural obstacle to employment in the public sector; as many, especially Muslim women, will in

fact be precluded from seeking employment in a work place where they are not permitted to wear a religious or

culturally determined scarf, tantamount to indirect discrimination. Based on the aim presented together with the

proposal; such differential treatment can not be considered objectively reasoned or proportional.

Proposal not put to the vote before end of the session.

Title:

Draft bill amending the Aliens Act and the Act on Nationality


Please refer to the chapter on Right to Respect for Family and Private Life, Home, and Correspondence.

2. Danish court decisions

Supreme Court:

No judgements concerning freedom of religion have been handed down during the period under review.

Eastern and Western High Courts:

No judgements concerning freedom of religion have been published during the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning freedom of religion have been published during the period under review.

4. Judgements of the European Court of Human Rights

No judgements or decisions concerning freedom of religion have been published with Denmark as a party to the case during

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 during the period under review.

Concrete cases:

No complaints against Denmark for violation of the freedom of religion have been considered during the period under

review.

6. Government initiatives

No relevant Government initiatives have been launched during the period under review.

7. Miscellaneous

Opinion on the equal right to divorce for both sexes.

Please refer to the chapter on the Rights of Women


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 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

Title:

Draft bill on enforcement of certain criminal decisions within the European Union

Please refer to the chapter on Right to Respect for Family and Private Life, Home, and Correspondence.

Title:

Proposed Council Framework Decision on a European Evidence Warrant for obtaining objects, documents and data

for use in proceedings in criminal matters (COM (2003) 688 final).

Please refer to the chapter on Right to Respect for Family and Private Life, Home, and Correspondence.

2. Danish court decisions

Supreme Court:

Danish Weekly Law Reports 2004, p. 2149, Supreme Court (U.2004.2149H)

The Nature Protection Board of Appeal’s decision to refuse permission to construct an 18 meter high aerial mast not

contrary to Article 10 of the ECHR.

A, who lived in a rural area requested permission from the municipality, K, to construct an 18 meter high aerial mast for his


use as radio amateur. K refused and A appealed to the Nature Protection Board of Appeal, N. N upheld the decision of K,

referring to the fact that the mast would have a negative impact on the special character of the rural area. A appealed to the

High Court claiming that the refusal violated his rights pursuant to Article 10 of the ECHR. He also claimed unjust

differential treatment as others in the area had received such permission. The High Court did find that the right to

communication between radio amateurs is protected by Article 10. However, in view of the consideration to avoid disorder

and to protect the rights of others, the infringement of the right to communication was justified in accordance with Article

10 (2). No grounds were found to prove unjust differential treatment either and consequently the High Court acquitted N.

Without considering whether the case was covered by Article 10 (1), the Supreme Court, like the High Court, found no

reason to overrule the decision of N and therefore upheld the decision of the High Court.

Danish Weekly Law Reports 2004, p. 1773, Supreme Court (U.2004.1773H)

Editor-in-Chief acquitted of defamation.

The District Court had found B guilty of 4 counts of sexual molestation of children in the kindergarten where he was

working, but upon appeal he was acquitted on 30 August 2000. On 1 September 2000, a daily, C, published statements of

the mother of one of the children concerned, both on the front page and in an article. The front page read “Distressed mother

after sex acquittal: I will denounce him as paedophile.” Part of the article read: ”When this man could walk free, the main

reason was that the video statements given by the children to the police were not allowed in court.” Similar statements were

published in an article on 5 September 2000. B initiated criminal proceedings against the editor-in-chief, A, of C for

defamation. The Supreme Court stated that not any criticism of a final verdict in a criminal case is considered an unlawful

charge against the acquitted. Whether such criticism is criminal depends on a concrete assessment, including when, by

whom and to whom the criticism is presented and disseminated as well as the basis, content and form of the criticism. The

Supreme Court found that the front page and the articles predominantly quoted statements of the mother. However, the

article on 1 September 2000 also contained parts as quoted above which could leave doubt as to whether they represented

the journalist’s own opinion as to the question of guilt. The Court criticized this lack of clarity, which, however, did not

present grounds to regard the articles in their entirety as an expression of C’s opinion as to the question of guilt.

Furthermore, the Supreme Court highlighted that the statements were presented in a very prominent and sensationalist

manner. On the other hand, it had to be considered that B’s name was not mentioned, and that the press coverage of the

verdict and the mother’s reaction were reasonable as part of the public debate on the particular problems concerning

evidence and due process, which cases about sexual molestation of children cause. Considering all the evidence, the

Supreme Court found that A had not committed criminal defamation and he was acquitted. It follows from the comments to

the decision that the Supreme Court is not convinced that A is guilty of violating Article 267 (1) of the Criminal Code, as

this provision should be understood in the light of Article 10 of the ECHR, which partly explains the acquittal of A

Danish Weekly Law Reports 2004, p. 976, Supreme Court (U.2004.976/1H)

Journalist and photographer from daily not permitted to visit and interview a person in custody found guilty of homicide.

On 23 September 2003 a jury convicted T to imprisonment for life for the homicide of her former spouse 10 years earlier

and for homicide of the father of her grandchild in 2002. T appealed the scope of the sentence to the Supreme Court and

during her continued custody, two journalists from a daily requested permission to interview and take photos of T for a

series of articles about female killers, which would not be published until after the decision of the Supreme Court. The


Public Prosecutor refused permission. T brought the case before the Supreme Court claiming that the refusal was a violation

of Section 77 of the Constitution, Article 10 of the ECHR and Article 59 (2) of the Act on Execution of a Sentence. The

Supreme Court stated that as a rule it is considered contrary to the law enforcement purpose of pre-trial detention – an thus

the sense of justice – that a person in custody, before the final decision of the Supreme Court, is given the opportunity to

address the public by interviews and photos through the press about the facts of the criminal case. There were no

circumstances giving grounds to dispense from this point of departure, and as the limitation of T’s freedom of expression

was not considered a violation of the provisions which T had presented, the Supreme Court upheld the decision of the

Public Prosecutor.

Danish Weekly Law Reports, 2004, p. 734, Supreme Court (U.2004.734H)

Parliamentary candidate punished with 20 days of conditional imprisonment for having made insulting and degrading

statements about Muslims in Denmark on a homepage on the Internet during the election campaign.

In connection with elections in which T was the top candidate of the Progress Party for the Copenhagen City Council and a

candidate for Parliament, he had opened a homepage on the Internet, www.muhamedanerfrit.dk meaning free of Muslims,

where he made generalized statements that Muslims in Denmark commit serious criminal acts and thus constitute a threat to

the lives and safety of the Danes. Consequently they must be “rounded up” and gathered in “concentration camps” so they

are ”prevented from harming the Danes”. Their living standard in the camps shall be gradually reduced until they can be

expelled. The homepage was open from the middle of September 2001 until 21 November 2001, the day after the

Parliamentary elections. The Supreme Court ruled that T’s statements were insulting and degrading to the part of the

population concerned, and that consideration for the especially wide freedom of expression for politicians on social matters

did not lead to the statements not being criminal. The Supreme Court therefore upheld that T was guilty of violating Article

266b (1) of the Criminal Code, as this shall be understood in the light of Article 10 of the ECHR and Article 17. As the

statements of T in connection with his election campaign were made through an electronic medium where everyone who

during a period of 2 months was seeking information about T’s political activities would be made aware of them, and as the

name of the homepage was suitable for attracting the attention of the public, the case was similar to dissemination of

propaganda. The Supreme Court fixed the sentence at 20 days of conditional imprisonment

Danish Weekly Law Report, 2003, p. 2044, Supreme Court (U.2003.2044H)

A statement that a politician held ”racist views” did not constitute criminal defamation.

T, a representative of The People’s Movement against EU, in October 1999 made the following statement in the news on

national radio: “I would really not like to be identified with Pia Kjærsgaard’s (A’s) racist views, and I am confident that this

will be the general opinion in a campaign.” The statement was made as a reason for the People’s Movement not wishing to

enter into cooperation with The Danish People’s Party (P), of which A was the chairperson, in the campaign against the

Euro. A commenced criminal proceedings against T, claiming that the statement was defamatory. The Supreme Court

acquitted T. According to The Danish Language Council the word racism has three meanings in contemporary Danish: 1)

related to Nazi racial anthropology and its consequences for the Jews, 2) referring to the superiority of one race over the

other, especially between blacks and whites and 3) referring to differential treatment and oppression of or even just rejection

of groups of people which may be of the same race as one self. It was clear from T’s statement that she had used the

expression “racist views” in the third meaning, referring to a negative attitude towards immigrants. As this attitude was

considered generally known in the Danish public and it was also considered general knowledge that there was no reason to

accuse A and P for holding racist views in any of the other two meanings of the word, The Supreme Court also assumed that


the expression “racist views” could only be understood as referring to the third meaning of the word. Consequently, the

statement would only constitute criminal defamation if its form had to be considered improper. First and foremost, T’s

statement was based on views expressed by A at the annual meeting of P earlier in October 1999. These views did not only

include arguments for limiting future immigration but also a sharp and unsubtle attack on immigrants in Denmark,

especially Muslims. T’s statement was made in a relevant political context and had to be perceived not as referring to A as

an individual, but to the views of A as the chairperson of P. Under the circumstances, T’s use of the term “racist views”

could not be considered improper and therefore, T had not violated Article 267 (1) of the Criminal Code. The Supreme

Court noted that the opposite result would constitute a violation of Article 10 of the ECHR. The expression “racist views”

was thus considered as T’s value judgement concerning the attitude of A and P. The term had been used in a political debate

on important social issues and was sufficiently based on A’s statement at the annual meeting of P. On this basis and

considering all circumstances T’s use of the term “racist views” is not considered a violation of the limits of the freedom of

expression.

Eastern and Western High Courts:

Danish Weekly Law Reports, 2004, p. 2487, Western High Court (U.2004.2487V)

A film company was ordered to hand over unedited tapes recorded to be broadcast on television to the police

A, representing the union F, on 14 November 2003 approached some Lithuanian citizens, L, whom F suspected of working

on farms without permission. The meeting was recorded on video tape by the film company B to be used in a programme on

TV3. When L reported A to the police for having pretended to be a police officer, the police wanted the unedited tapes for

the investigation. B, who had put tapes concerning the TV programme at the disposal of the police, objected as a matter of

principle to handing over the unedited tapes. Considering the principle of proportionality, the District Court did not allow

the request of the police. The High Court found the conditions for editing fulfilled and noted that handing over the tapes did

not constitute an inconvenience out of proportion to the importance of the case, cf. Article 805 (1) of the Administration of

Justice Act together with Article 10 of the ECHR.

Danish Weekly Law Reports, 2004, p. 698, Eastern High Court (U.2004.698Ø)

A, who had worked as an agent of GDR’s intelligence service Stasi, S, was employed as an assistant at the daily Ekstra

Bladet, EB, in 1998 in relation to ”letters to the editor.” In the time preceding the employment, EB had published articles on

Communist spies in Denmark based on information from one of S’s archives. When employed, A did not inform about his

past with S. In March 1999 EB published an article about A’s work for S, part of which stated that A had infiltrated the

editorial offices of EB and that he had participated in sending GDR citizens to inhumane prisons, that he had been running a

brothel on the side, and that it seemed obvious to assume that he had continued his activities as an agent for the Russian

intelligence service after the breakdown of GDR. A initiated proceedings against the two journalists who had written the

article and the editor responsible under the press law for violating Articles 267 and 268 of the Criminal Code. The claim

concerning the running of a brothel was justified. The High Court stated that there is very considerable public interest in

journalistic reporting of the activities of Danes in the service of foreign states’ secret services, including S. When assessing

whether such reporting constitutes criminal defamation, the provisions in Articles 267 and 268 of the Criminal Code should

be read in light of the provisions on freedom of expression in Article 10 of the ECHR, which has been incorporated into

Danish law. Considerations for the freedom of expression weigh extraordinarily heavy when balancing against the

consideration for the protection of an individual’s good name and reputation or rights. This entails recognition of a rather

wide freedom of expression for the press, and – as the public watchdog – the press is thus permitted a certain degree of


exaggeration and provocation in connection with these issues, when there are factual grounds for critical reporting. On this

basis as well as A’s behaviour when employed at EB and the information from the S archives, the journalists and the editor

were acquitted of A’s claims.

Danish Weekly Law Reports, 200, p. 2438, Western High Court (U.2003.2438V)

The refusal of the owner of a pizzeria to serve Germans and Frenchmen constituted a violation of the Act against Racial

Discrimination.

Through signs T, the owner of a pizzeria, announced that he refused to sell pizzas to Germans and Frenchmen. The reason

was the lack of support from Germany and France to the armed intervention in Iraq. For these acts and for refusing to serve

a couple where the woman was German, T was sentenced to a fine of DKK 5,000 for violating the Act against Racial

Discrimination, as this Act is not limited to protect minorities and as the acts of T could not be considered exempt from

punishment considering the provisions on freedom of expression in Section 77 of the Constitution and Article 10 of the

ECHR.

3. Opinions of the Parliamentary Ombudsman

File No.: 2003-0322-401 Selective service of the press.

Through the press, the Ombudsman became aware that The Prime Minister’s Department had given a certain daily access to

a speech about the EU which the Prime Minister was to deliver. The daily was going to publish the speech as its feature

article on the day of the speech. The day before the speech other media including another daily showed interest in the

speech and on the night before the speech this daily asked the head of the press office of the Prime Minister’s Department

for access to the speech. This was refused because the first daily had already had access. The Ombudsman investigated the

case on his own motion. The Ombudsman stated that the interest of an authority to ensure that certain messages are

communicated in the most efficient way and reach optimum impact by launching them as exclusive stories does not in it self

constitute a lack of objectivity. However, this consideration is not sufficiently weighty compared to the statutory principle

of openness and the principle of equality in administrative law to constitute a general refusal or delay of access to

information for other parties. The Ombudsman stated that by giving the speech to the first daily it ceased to be an internal

document and consequently The Prime Minister’s Department could not refuse access to the speech for others claiming the

provisions concerning internal documents of the Access to Public Administration Files Act. Under the circumstances, the

Ombudsman did not find any administrative reasons why the head of the press office of The Prime Minister’s Department

should not immediately accommodate the request from the other daily for access to the speech. As The Prime Minister’s

Department on the same day of giving the speech to the first daily was in contact with several media concerning the speech,

the Ombudsman finds that the Department on its own initiative should have offered these media the same access as granted

to the first daily.

Extract from the Ombudsman’s statement: Equal treatment of all journalists is considered to be in the best accord with the

considerations behind Article 10 of the ECHR on protection of the freedom of expression. Differential treatment among

journalists can therefore only be relevant if overmastering and objective reasons speak in favour hereof.

The journalist to whom an authority considers granting an exclusive story will normally be interested in ensuring to the

extent possible that the same story is not published by others, before or at the same time as he/she plans to publish.


Therefore the authority can expect that the journalist may demand or assume, possibly tacitly, that the authority withholds

the same story from others, especially from competing media. In my opinion, the authority can not legally accommodate

such a request to withhold or delay access if others request information about or access to the same case, cf. the normal

principle of equality in administrative law. I also refer to Article 10 of the ECHR on protection of the freedom of expression

in which the right to receive information is highlighted.

File No.: 2003-2449-815 The freedom of a police officer to make public statements.

A deputy detective superintendent with the Commissioner of Police who was heading the investigating of a homicide, made

public statements on the lack of staff for the investigation of the case. A deputy assistant commissioner also with the

Commissioner of Police informed the deputy detective superintendent that he was not allowed to make statements to the

press concerning internal matters in a division with the Commissioner of Police. When asked by the deputy detective

superintendent the deputy assistant commissioner confirmed that he had been ”gagged”.

Pursuant to Article 17 (1) in the Ombudsman Act, the Ombudsman initiated an investigation. The Ombudsman made

general statements on the freedom of expression of public servants. In the specific case the Ombudsman stated that it had

not been justified that the deputy assistant commissioner in this manner had informed the deputy detective superintendent of

limitations to his freedom to speak to the press. The Ombudsman found it regrettable that the Commissioner of Police,

based on the rules applicable to the freedom of expression of public servants, did not make an adequate and legally correct

statement on the matter. The Ombudsman noted that the Commissioner of Police had promised to be aware of the

importance of official declarations, e.g. in cases similar to the present one, being communicated with sufficient clarity.

4. Judgements of the European Court of Human Right

No judgements or decisions concerning the right to freedom of expression or information have been considered during 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 during the period under review.

Concrete cases:

No complaints against Denmark for violation of the rights to freedom of expression and information have been considered

during the period under review.

6. Government initiatives

No relevant Government initiatives have been launched during the period under review.


7. Miscellaneous

The Danish Data Protection Agency

In two decisions by the Data Protection Agency, the Agency has permitted the publishing of data about a person on the

Internet without this persons consent, as considerations for the freedom of expression and freedom of information and the

interest of the publisher exceeded considerations for the one published.

On 20 May 2003, A complained to the Agency, that B had published information about A on his homepage. A wanted the

Agency to order B to remove the information from the homepage as A had not consented to B publishing the information.

From the decision of the Agency it is clear that in order for the registration to comply with the Act on Protection of Personal

Data there must be an explicit consent to publish the information from the one registered. If there is no consent from the one

registered, the balancing of considerations for the protection of the one registered and considerations for a legitimate interest

that the information be passed on could result in the registration nevertheless being in compliance with the Act on

Protection of Personal Data. The assessment must be made with due consideration for the freedom of expression as the Act

on Protection of Personal Data does not apply, if contrary to the freedom of information and freedom of expression, cf.

Article 10 of the ECHR.

In its decision of 18 June 2004 the Agency concludes that consideration for A did not exceed consideration for B’s interest

in publishing the information on his homepage and chose not to intervene with the mention of A on the homepage of B. In

its assessment the Agency applied considerable weight to consideration for the freedom of expression.

On 10 January 2004 A complained that B had published information about A on his homepage. The information was

published without the consent of A and A wanted the information removed. Information processed on the Internet, is

covered by the Act on Protection of Personal Data and as a rule consent from the one registered should be obtained. A

concrete balancing of consideration for the one registered and consideration for freedom of information and freedom of

expression could entail that the publishing of the information is in compliance with the Act on Protection of Personal Data.

Upon a concrete assessment the Agency concluded that consideration for B publishing information about A, in light of the

freedom of information and freedom of expression in Article 10 of the ECHR, results in the registration not amounting to a

violation of the Act on Protection of Personal Data. For this reason the Agency did not order B to remove the information

about A from his homepage.

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,part 1 of the Danish Constitution

(1) Citizens shall, without previous permission, be free to form associations for any lawful purpose.

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:

Proposal for a parliamentary decision on the dissolution of the association Hizb-ut-Tahrir.

Background:

The presenters want the association Hizb-ut-Tahrir dissolved based on a preliminary injunction in order later to dissolve the

association by court order, cf. Section 78, paragraphs 2 and 3 of the Constitution. The current reason for the proposal is the

association’s dissemination of its views to school children. The proposal is partially a repetition of the proposal for a

parliamentary decision B 103 from the Parliamentary year 2001-02 which was rejected. The proposal was presented after

the association had distributed a flyer encouraging the killing of Jews in Copenhagen. A representative of the association

was sentenced for violating Article 266b (1) partly cf. Article 23 of the Criminal Code for distributing the flyer via the

Internet and by distribution, in which persons with a Jewish background were seriously threatened, insulted or degraded.

This decision was upheld by the Eastern High Court on 14 March 2003. The Public Prosecutor then prepared a report on 15

January 2004 on the possible dissolution of the association. The report concluded that all things considered it can not

recommend the dissolution of the association pursuant to Section 78 of the Constitution, as it would not be possible to

adduce the necessary evidence that the association has an illegal purpose, cf. Section 1 or aims at the attainment of their

object by violence, by instigation to violence etc., cf. Section 2. The presenters want the court to assess whether – in spite of

the report of the Public Prosecutor – there are grounds to dissolve the association by court order.

The proposal was rejected.

2. Danish court decisions

Supreme Court:

No judgements concerning the right to freedom of assembly and association have been handed down during the period

under review.

Eastern and Western High Courts:

No judgements concerning the right to freedom of assembly and association have been published during the period under

review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the right to freedom of assembly and association have been published during the period under


eview.

4. Judgements of the European Court of Human Rights

No judgements or decisions concerning the right to freedom of assembly and association have been published with

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

5. Opinions of and concrete cases before the Committees

Relevant Committees:

The Human Rights Committee (HRC). ILO Committee of Experts on the Application of Conventions and

Recommendations (CEACR)

Opinions:

Human Rights Committee:

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

ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR)

In 2004 the Committee made a comment concerning the ILO Convention No. 98, the Right to Freedom of Association. The

comment concerns the right of sailors to organize on board Danish ships. The Committee indicates that at present Denmark

does not fully live up to Article 4 of the Convention. Consequently, the Committee requests Denmark to amend the

legislation in accordance with Article 4.

Specific cases:

No complaints against Denmark for violation of the right to freedom of assembly and association have been published

during the period under review.

6. Government initiatives

No relevant Government initiatives have been launched during 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 during the period under review.

2. Danish court decisions

Supreme Court:

No judgements concerning the rights to an effective remedy have been handed down during the period under review.

Eastern and Western High Courts:

No judgements concerning the rights to an effective remedy have been published during the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the rights to an effective remedy have been published during the period under review.

4. Judgements from the European Court of Human Rights

No judgements or decisions concerning the right to an effective remedy have been published with Denmark as a party to the

case during 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 during the period under review.

Concrete cases:

Human Right Committee

No complaints against Denmark for violation of the right to an effective remedy have been considered during the period

under review.

6. Government initiatives

Guidelines:

“How to complain to the European Court of Human Rights

Background:

The Ministry of Justice has prepared a revised guideline describing the individual complaint procedure following from the

ECHR. Cases, that is, where individuals or non-governmental organizations wish to complain directly about a state to the

European Court of Human Rights. The procedures in this connection are also described.

Assessment by the Institute:


It is welcomed that the guidelines show that the ECHR and the Additional Protocols have entered into force for Greenland

and the Faeroe Islands, and that the changes concerning legal aid in connection with complaints to international complaint

mechanisms in accordance with the human rights conventions are provided. However, the Institute recommends that the

guidelines, considering the various ethnic minorities, be published in other languages than Danish, e.g. Greenlandic,

Faeroese, German, English, French, Arabic, Urdu, Turkish and Somali. This would be appropriate for information purposes.

Furthermore the Institute recommends certain linguistic changes in the guidelines. Finally it should be mentioned that

complaints to the European Court of Human Rights can only be presented by ordinary mail.

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

2000 establishing a general framework for equal treatment in employment and occupation (the Employment Directive). ILO

Convention No. 111 The Discrimination (Employment and Occupation) Convention. 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:

Act amending the Act on Nationality

Please refer to the chapter on the Right to Respect for Family and Private Life, Home, and Correspondence

Title:

Draft bill amending the Act on Hospital Services and Act on Public Health Insurance

Background:

The purpose of the bill is to make hospital services more open and transparent and to ensure the patients real choices within

the service. Another purpose is to ensure efficiency – including avoiding the waste of resources and reducing waiting time –

and quality in health services. The main elements are:

- to strengthen the free choice of hospital by increasing the hospital’s duty to inform about the right to free choice of


hospital and by extending the free choice of hospital to comprise certain private institutions and two rehabilitation centres

for traumatized refugees (Article 5b (5)).

- that information about the patient can be passed on with the oral consent of the patient given to a member of the health

staff or the patient adviser (Article 5 b (7),

- to introduce a fee for the use of interpreter if the citizen has lived in Denmark for seven years or more (Article 5 (h)), thus

increasing the motivation for learning Danish; the fee will be applied as of year 2011

- and that fees for not showing up for scheduled treatment will be introduced on a trial basis (Article 4 b (2)).

Human rights :

The proposal relates to the obligation of public authorities in accordance with administrative law to give guidance –

including the duty to offer the use of an interpreter in situations where it is difficult for a patient to communicate with

hospital staff and thus obtaining optimum treatment.

Assessment by the Institute:

Concerning Article 5h of the proposal to cut free interpretation service for citizens who have lived in Denmark for seven

years or more, the Institute wishes to make certain remarks. It follows from legal administrative practice that public

authorities have a special obligation to guide foreigners, for whom it may be difficult look after their interests because of the

language barrier, cf. e.g. Danish Weekly Law Report 1990, p. 240 and 1998, p. 509. As a consequence, public authorities

shall to a certain extent make interpretation services available. It follows from the principle of good administrative practice

that the obligation to guide applies in relation to the actual administration, if the interests related hereto are comparable with

the interests concerning decision making and are as important to the individual citizen. The Institute finds it especially

important that communication between patient and hospital staff in connection with hospital treatment is sufficiently clear.

In the view of the Institute, it can not be excluded that the county hospitals as a consequence of the obligation to guide are

obliged to offer interpretation service. If this is the case, the obligation to guide implies that this decision is based on a

concrete assessment whether the patient in question has difficulties communicating with hospital staff and thus difficulties

obtaining optimum treatment. If the obligation to offer interpretation services in these situations is covered by public

authorities’ existing obligation to guide, the Institute finds that no fee can be charged for this service.

Reference:

Act No. 441 of 9 June 2004.

Entry into force on 1 July 2004. Article 1, No. 3, 5 and 6, enter into force on 1 January 2005 and Article 1, No. 8

and Article 2 enter into force on 1 June 2011.

Title:

Draft bill amending the Act on Equal Treatment of Women and Men (authority to institute proceedings to be

transferred from the Minister to the Secretariat of the Gender Equality Board)

Background:

The Gender Equality Board handles cases about differential treatment based on gender and can award compensation to the

complainant. The Board operates independently from the minister. Board decisions on payment of compensation can be

enforced through court if the defendant does not pay to the complainant. The proposal transfers the mandate to bring cases

to the court for enforcement from the Minister for Equality to the secretariat of the Gender Equality Board. This is a

strengthening of the Board and the roles when commencing court proceedings are clarified. At the same time the rules

become almost identical to those which apply to the Danish Consumer Council with the exception that the Council’s

commencement of court proceedings is optional.


Assessment by the Institute:

The Institute was heard but had no human rights comments to the draft bill.

Reference:

Act No. 321 of 5 May 2004.

Entry into force on 1 June 2004.

Title:

Act amending the Act on Prohibition of Discrimination in the Labour Market etc.

The amendment introduces a new criterion for discrimination in the Act, prohibiting discrimination based on faith, and

introduces a definition of discrimination. Furthermore, the amendment introduces shared burden of proof in cases

concerning discrimination in the labour market. The amendment was described in the Status 2003 (page 93), but was not

adopted at the end of the year. Adoption took place on 30 March 2004

Reference:

Act No. 253 of 7 April 2004.

Entry into force: The day after publication in the Danish Law Gazette.

Title:

Act amending the Act on benefits in case of sickness or birth

Please refer to the chapter on the Rights of Women.

Title:

Opinion on the equal right to divorce for both sexes

Please refer to the chapter on the Rights of Women.

Title:

Proposal for a parliamentary decision on the incorporation of UN Human Rights Conventions into Danish law

Please refer to the chapter on the Prohibition of Torture, and Inhuman or Degrading Treatment or Punishment

Title:

Draft bill amending the Act on Prohibition of Discrimination in the Labour Market

Please refer to the chapter on the Rights of the Disabled.

2. Danish court decisions

Supreme Court:

Please refer to Danish Weekly Law Reports 2004, p. 734, Supreme Court and other decisions in the chapter: Freedom of

Expression and Information.

Eastern and Western High Court:


Danish Weekly Law Reports 2004, p. 1360, Western High Court (U.2004.1360V)

In an e-mail to 44 members of Parliament, T had made statements about refugees and immigrants, and there was evidence

that T had the intention to wider disseminate the statements in the mail. It was taken into account that T’s statements

concerned refugees and immigrants living in Denmark and who had another ethnic background than Danish and were

covered by Article 266 b (1) of the Criminal Code. The statements did not contain any threats against this group of people,

so the question was only whether the mail contained statements whereby this group of people was insulted or degraded. T

was found guilty concerning some of the statements. The High Court stated that the elements of a crime in Article 266 b of

the Criminal Code as established by the decision of the Supreme Court of 23 August 2000 – published in Danish Weekly

Law Reports 2000, p. 2234 – must be established in accordance with the freedom of expression. The High Court further

stated that a debate on the political goals of T was, however, not prevented by criminalizing statements of the kind that T

had made in his e-mail. The especially wide freedom of expression for controversial social matters could not justify

exemption of punishment for T. The sentence was fixed at 10 ”day fines” of DKK 400 each

Danish Weekly Law Reports 2004, p. 641, Western High Court (U.2004.641V)

Fines of DKK 1,000 to doormen, DKK 5,000 to the manager and DKK 10,000 to the licensee of a restaurant for violating

the Act Prohibiting Discrimination on the Grounds of Race etc. No compensation for injury to feelings or reputation. Two

doormen, T1 and T2, were found guilty of violating the Act Prohibiting Discrimination on the Grounds of Race etc. by

having denied some people access to the restaurant X because of their ethnic origin. T3, the manager of X, was found guilty

of violating the same Act by having ordered the doormen to prevent the assembly of persons in X who were of other ethnic

origin than Danish. T4 – a limited liability company – was also found guilty of violating the same Act by as the licensee to

X having issued guidelines to avoid the assembly of groups of guests with other ethnic origin than Danish. The High Court

stated that the fines imposed constituted a suitable sanction of the illegal rejection of F. The case was not considered

sufficiently serious to also award F compensation for injury to feelings or reputation, cf. Article 26 of the Act on Liability

for Damages.

Danish Weekly Law Reports 2004, p.2559, Western High Court (U.2003.2559V)

T was found guilty of violating Article 266b of the Criminal Code by having made a song publicly available on his

homepage which was insulting and degrading and directed at Jews and Turks due to their race, nationality or ethnic origin.

When fixing the sentence it was taken into consideration that T did not want songs on the homepage which ”overstep the

mark” and that there were no other songs with a similar content on the homepage. However, when reading the text, T, made

an error of judgement concerning the limits for what is permissible. It was further taken into consideration that T when he

became aware of the content quickly deleted the text. T was sentenced to 5 “day fines” of DKK 200 each (Dissenting

judgement).

3. Opinions from the Parliamentary Ombudsman and the Complaints Committee for Ethnic Equal Treatment.

The Ombudsman:

File No. 2004-1157-643: In this case the complainant had been refused spouse reunification. The Ombudsman did not find

reasons to criticize the refusal. In this connection he noted that concerning the complainant’s argument that the requirement

for aggregate ties in the Aliens Act in itself constituted a violation of Article 14 together with Article 8 of the ECHR and

Article 1 (2) of the UN Convention for the Elimination of All Kinds of Racial Discrimination, Parliament is not within the

mandate of the Ombudsman and he could therefore not criticize the laws adopted by the Parliament.


The Complaints Committee for Ethnic Equal Treatment - complaints.

Decision of 20 October 2004 (File No. 711.2)

The Complaints Committee was not able to handle a complaint that the municipality of Rødovre had registered a person as

having left the country, as a statement in the case would necessitate production of evidence in the form of questioning both

parties and witnesses which is not within the mandate of the Committee. The Committee recommended that handling of

cases in accordance with Article 24 of the Act on the Civil Registration System were prepared in such a manner that

administration of the provision would prevent the risk of especially serious consequences for persons with another ethnic

background.

Decision of 1 September 2004 (File No. 730.4)

The willingness of an employee of a technical school to accommodate the demand of certain employers not to receive

persons with another ethnic background than Danish as trainees was found to be a violation of the prohibition against direct

differential treatment, cf. Article 3 (1) of the Act on Ethnic Equal Treatment. There was no documentation that the school in

general had been open to accommodate certain employers’ demand not to receive persons with another ethnic background

as trainees. It was not documented either that a complainant had been subject to reprisals from the defendant following a

complaint about differential treatment.

Decision of 2 June 2004 (File No. 770.5)

The Complaints Committee for Ethnic Equal Treatment rejected a complaint about articles published in a daily concerning

complaints, as the complaint was outside the scope of the Act on Ethnic Equal Treatment.

Decision of 12 May 2004 (File No. 710.2)

The Complaints Committee for Ethnic Equal Treatment found no documentation that a case officer had made racist

statements to the complainant during the handling of his case concerning contact with his children.

The Complaints Committee for Ethnic Equal Treatment – cases of own motion

Decision of 19 August 2004 (File No. 770.3)

The Complaints Committee for Ethnic Equal Treatment recommended that a housing association ceased to inquire about the

nationality of the applicants when recommending the allocation of hostel and youth apartments.

4. Judgements of the European Court of Human Rights

No judgements or decisions concerning the prohibition of discrimination have been published with Denmark as a party to

the case during the period under review.

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 during the period under review.

Human Rights Committee:

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

Concrete cases:

Committee on the Elimination of Racial Discrimination:

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

Human Rights Committee:

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

6. Government initiatives

Action Plan to promote equal treatment and diversity and to fight racism

Among other things, the Action Plan contains a number of new initiatives to promote equal treatment and diversity. The

Plan is a result of the UN World Conference Against Racism which was held in South Africa en 2001.

Implementation of the Action Plan to promote equal treatment and diversity and to fight racism

In 2004, 2,5 million DKK were allocated from the special allocation to implement the initiatives in the Government’s

Action Plan to promote equal treatment and diversity and to fight racism. The Action Plan is to strengthen fellow

citizenship, integration, equal rights and mutual respect in a diverse society.

Report of the Ministry of Education on the legal aspects of composing classes on the basis of ethnic origin

In its report of 14 May 2004, the Ministry of Education finds that Article 5 (7) of the Act on Primary Education, according

to which teaching of Danish as a second language to bilingual children is to be offered as needed, and which provides the

statutory basis for the Ministry to make the detailed regulation hereof, together with the Ministry’s Order No. 63 of 28

January 1998 exhaustively provide the rules for the organization of the teaching of bilingual children who have a special

need for teaching of Danish. The teaching can take place in classes with special support, in special groups, through

individual teaching or in special reception classes. There is consequently no statutory basis for creating specific classes with

bilingual children. A part from the lack of statutory basis, the Ministry states that in view of Article 14 of the ECHR, a

criterion based on the ethnic origin of the children can not be considered objective, and that it would be contrary to basic

principles of equality to create classes based on the ethnic origin of the children. It would furthermore be contrary to the

basic premise of integration upon which primary school is built. The creation of classes shall follow a concrete assessment

and balancing of legal and objective criteria that are not contrary to basic rights such as the principle of equality, the

Constitution and Denmark’s international obligations. These demands can not be considered fulfilled by creating classes

based on ethnic origin.

Report of the Ministry of Education on the legal aspects of creating special schools for bilingual children

The report of 14 May 2004 states that basically a child has the right to be admitted to the district school pursuant to Article

36 (2) of the Primary Education Act. However this right can be derogated from for bilingual children, cf. Article 5 (7). The

comments to the Act on this provision say that it is possible to refer the bilingual children to reception classes in other


schools, if they – after an individual evaluation – are not sufficiently proficient in Danish when starting in school. The

comments further state that the reception classes are meant to be created in schools with a low concentration of bilingual

pupils. It is the assessment of the Ministry that a school which only admits a limited group of pupils, e.g. bilingual, does not

live up to the requirements of the legislation that each school has a (geographical) distinct school district, cf. Article 36 (2).

The order further states that pupils in reception classes must gradually have part of their classes in an ordinary class and that

teaching in these reception classes can not be maintained for more than 2 years. These requirements can not be met at a

special school for bilingual pupils. Consequently, the Ministry concludes that it will be contrary to the legislation on

primary education to create a special school for bilingual pupils from an entire municipality where the pupils should stay

until having sufficient proficiency in Danish

Booklet on methodology: Access to Justice – how to ensure due process and the rule of law for socially vulnerable groups.

The booklet is published by the Danish Centre for Research on Social Vulnerability, an independent institution under the

auspices of the Ministry of Social Affairs. The booklet presents and communicates methodological experience from

municipalities’ and counties’ work to ensure due process for socially vulnerable citizens.

Report: The Right to a Better Life. Due process and rule of law for socially vulnerable groups.

The Report from the Danish Centre for Research on Social Vulnerability collects experience from four model projects that

have developed methods to ensure due process and the rule of law for socially vulnerable citizens in their encounters with

social authorities.

7. Miscellaneous

Report of the Institute for Human Rights on spouse reunification in Denmark

Please refer to the chapter on Right to Respect for Family and Private Life, Home, and Correspondence.

Criticism raised in Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to Denmark 13 th -16 th

April 2004, Commissioner for Human Rights for the Council of Europe.

The separation of ethnic Danish pupils and bilingual pupils in special classes – and the decision to establish a school

exclusively for bilingual pupils in Høje Tåstrup – gives the Commissioner cause for concern. The separation deprives the

ethnic Danish children and the bilingual children of the possibility to get to know each other and to learn to live as equal

citizens, and children with another ethnic background than Danish risk to be marginalized later in life. With a view to

fighting discrimination, not least the difficult access of Roma children to education is criticized in this connection. In this

connection the special classes exclusively for Roma children established in the municipality of Ellsinore, where 30 children

are now admitted, are mentioned. The children belong to different age groups and are admitted to the class based on the

teacher’s decision. The majority of the children do not return to “normal” classes again. In reality the criteria for admittance

is the ethnic background of the pupils and consequently some of the children do not have any special teaching needs and the

admittance to the class can therefore have a negative impact on their prospects for the future. The Commissioner wonders

why the Roma children who have special teaching needs can not be placed in traditional remedial classes, where Danish

pupils with special needs are admitted. The arrangement raises serious doubts about equal access to quality education and

increases the exclusion of the Roma children from the rest of society which is why the Commissioner recommends that the

arrangement be changed.


Practical implementation of EU directives on equal treatment (the MIA project)

Diversity in Working Life (the MIA project) is financed by the EU and implemented by the Institute for Human Rights in

the area of discrimination. The purpose of the project is to establish dialogue and focus on diversity and equal treatment in

working life and thus follow up on the implementation of the equal treatment directives which are to ensure that everyone is

treated equally irrespective of ethnic origin, religion, disability, age and sexual orientation. The MIA Prize was established

by the Institute for Human Rights in 2003 and awarded for the first time in March 2004. In 2005 the MIA prize was also

awarded in March.

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 during the period under review.

2. Danish court decisions

Supreme Court:

No judgements concerning the right to protection of property have been handed down during the period under review.

Eastern and Western High Courts:

No judgements concerning the right to protection of property have been published during the period under review.


3. Opinions of the Parliamentary Ombudsman

No opinions concerning the right to protection of property have been published during the period under review.

4. Judgements from the European Court of Human Rights

No judgements or decisions concerning the right to protection of property have been published with Denmark as a party to

the case during 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 during the period under review.

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Convention provisions: The International Covenant on Economic, Social and Cultural Rights (ICESCR).

The European Social Charter. Chapter IV of the Charter of Fundamental Rights of the European Union.

1. Bills

Title:

Proposal for a parliamentary decision on the incorporation of UN Human Rights Conventions into Danish law

Please refer to the chapter on torture, inhuman or degrading treatment or punishment

2. Danish court decisions

Supreme Court:

No judgements concerning economic, social and cultural rights have been handed down during the period under review.

Eastern and Western High Courts:

No judgements concerning economic, social and cultural rights have been published during the period under review.

3. Opinions of the Parliamentary Ombudsman


No opinions concerning economic, social and cultural rights have been published during the period under review.

4. Judgements from the European Court of Human Rights

No judgements or decisions concerning economic, social and cultural rights have been published with Denmark as a party to

the case during the period under review.

5. Opinions of and concrete cases before the Committees

European Committee of Social Rights

The European Social Charter of 1961/revised in 1996 and additional protocols were ratified by Denmark in 1965. The

Charter guarantees rights that touch upon the daily life of everyone, like the right to work, access to an efficient health

system, free education, the right to social security/welfare services, the right to collective bargaining, the rights of

immigrants, the right to family reunification, equal access and treatment for both sexes in the labour market etc.

The Social Committee of the Council of Europe is to assess the compliance of member states’ national legal system with the

European Social Charter, e.g. by examining the countries’ reports to the Committee. On the basis hereof the Committee

publishes its conclusions every year.

The Committee has presented 17 conclusions concerning Denmark, and in 5 cases Danish law was not in compliance with

the Charter:

The Committee points out a lack of compliance concerning Article 5 of the Charter on the right to organize, one reason

being the existence of the so-called ”closed shop” clauses, concerning Article 6 (4) on the right to collective bargaining

among others because of the lack of the right to strike for public servants and the fact that workers who participate in a legal

demonstration are not guaranteed reemployment. Also Article 6, 2 on the negotiation procedures for collective bargaining

and finally Article 13, 1 on the right to social and medical assistance, as foreigners legally residing in Denmark or working

are not treated as Danish citizens concerning the right to permanent assistance and the requirement of 7 years residence in

Denmark in order to obtain the right to cash benefits.

Finally Article 12 (4) on the right to social security also for foreigners is mentioned, where starting allowance compared to

cash benefits is deemed to be an expression of indirect discrimination as the residence requirement, according to the

assessment of the Social Committee of the Council of Europe, in practice affects foreigners much more. The Committee

finds this to be contrary to the European Social Charter

Source: European Social Charter, European Committee on Social Rights Conclusions XVII-1 (Denmark) 2004.

6. Government initiatives

No relevant Government initiatives have been launched during the period under review.

7. Miscellaneous

Supplementary report by the Institute for Human Rights to Denmark’s 4. periodic report to the UN Committee on


Economic, Social and Cultural Rights.

The Report is on the status of implementation of ICESCR in Denmark, focusing on ethnic minorities. In content and

structure the report relates to the official report presented by the Government in March 2003. The Institute has chosen to

focus on selected relevant Articles in ICESCR, namely:

Art. 2: The right to non-discrimination and issues concerning the implementation of the ICESCR.

Art.9: The right to social security.

Art.10: The rights to protection of the family, mothers and children.

Art.13: The right to education.

Concerning Art. 2, the Institute finds it problematic that, based on the declarations of the Government in connection with

proposal for a parliamentary decision B134 on incorporation of the UN human rights conventions into Danish law as well as

the report of the Committee on Incorporation no. 1407, the incorporation of ICESCR for the moment appears to be

postponed indefinitely. The total rejection to incorporate any UN convention is inappropriate and surprising considering the

statements of the Committee on Incorporation. Not incorporated conventions are relevant sources of law, however practice

has shown that the authorities applying the law primarily base their human rights analyses on the ECHR.

Furthermore, certain remarks are made concerning the limited possibilities of the Complaints Committee for Ethnic Equal

Treatment for efficient case handling and the risk of discrimination based on religion, as the mandate of the Committee

basically does not cover these cases.

Concerning Art. 9, the Institute finds it problematic that the provisions of the Aliens Act on starting allowance indirectly

discriminate legally resident ethnic minorities in Denmark.

The same applies to the new provisions on maintenance payments, which indirectly discriminate women of other ethnic

origin than Danish compared to ethnic Danish women who are closer connected to the labour market.

In relation to Art. 10, the Institute points to the practical problems in connection with placing ethnic minority children

outside of the home and looks forward to Government initiatives in this area. The importance of treating children equally,

irrespective of their ethnic origin, is highlighted, however, at the same time it is important to consider and to respect the

cultural background and norms of the child.

The Institute recognizes some of the Government’s initiatives concerning integration while stressing that these initiatives

requires respect for other cultures as well as diversity in society. This is necessary to live up to international standards as

well as each individual’s human right to self-determination.

In connection with Art. 11 of the Convention, the Institute finds the suspension of the teaching of the mother tongue

problematic, as this change generally poses a risk to negatively influence the linguistic conscience of the child as well as its

social skills. The Institute wishes to raise the question of indirect discrimination, as those who will be hit the hardest by the

changes will be economically vulnerable minorities from Third World countries.

In relation to the introduction of compulsory pre-school language stimulation, the importance of respect for the diversity of

the children is highlighted. This is a guiding principle for the education system in general and a basic principle in the

Primary Education Act. The Institute recognizes that bilingual children need to learn the Danish language; however the


Institute believes that this should take place through information and dialogue with the parents, and by stressing the need for

the children to improve their Danish language qualifications. It is problematic that the legislative material only mentions the

ECHR and no other international human rights conventions, as the Government has not followed the recommendations of

the Committee on Incorporation in its report no. 1407 from 2001 concerning incorporation of the basic UN conventions.

Act No. 477 was adopted 9 June 2004.

The Institute finds it positive in relation to bilingual pupils that the municipalities have introduced ”magnet schools” by

financial subsidy to schools with a majority of pupils with another ethnic background than Danish, as these schools are

made more attractive for socially better off parents, thus ensuring diversity in primary school.

Concerning the ”Albertslund” model the Institute finds it problematic that ethnic Danish Pupils are not tested and

furthermore are free to chose the local primary school, whereas bilingual pupils risk considerable travel time and expenses

in connection with the school appointed to them. The Institute encourages the Government to evaluate the possible

improvement in the pupils’ language skills through this model.

In this connection it should be noted that the Government, through a bill which is expected in February 2005, wishes to

legalize the “Albertslund” model.

The Institute finds the separation of pupils as seen in Høje Taastrup, Vejle and the Roma classes in Ellsinore highly

problematic in relation to the principle of diversity in primary school and in relation to the prohibition against

discrimination based on ethnic origin. The Institute agrees with the conclusions from the reports by the Ministry of

Education on the legal aspects of forming classes based on ethnic origin and expects that the municipal initiatives will be

abolished.

SPECIAL RIGHTS

Rights of Women

Convention provisions: The International Convention on the Elimination of All Forms of Discrimination against Women

(ICEDAW).

ILO Conventions No. 100 on Equal Pay for Equal Work and No. 111 on The Elimination of Discrimination Concerning

Appointment and Employment.

Article 23 of the Charter of Fundamental Rights of the European Union.


1. Bills

Title:

Draft bill amending the Aliens Act and the Act on Integration

Please refer to the chapter on the Right to Respect for Family and Private Life, Home, and Correspondence.

Title:

Draft bill amending the Act on Equal Treatment of Women and Men (Authority to commence proceedings to be

transferred from the Minister to the Secretariat of the Gender Equality Board)

Please refer to the chapter on Prohibition of Discrimination.

Title:

Act amending Act on Benefits in case of Sickness or Birth

Background:

It appeared from decision no. 10 of 26 September 2002 by the Gender Equality Board that female wage earners, who,

according to the present legislation on holidays or the collective agreements, do not earn paid holidays during the first 14

weeks of their maternity leave, do not have the possibility to earn holiday compensation during maternity leave for use in

the holiday year to follow. This group, estimated at some 1,000 women in Denmark, are thus poorly situated in the

following holiday year as a consequence of the maternity leave. The overall purpose of the Act is to improve the conditions

for these women during and after the maternity leave.

It appears from the comments to the bill that the Government considers it unclear whether a right to holidays with economic

compensation is covered by the directive after the decision of the European Court of Justice in the Boyle case, C-411/96

from 1998. The purpose of the bill is thus to ensure correct implementation of the Council directive 92/85/EEC from 1992

(directive on pregnancy) and to clarify the legal position in this area

It is therefore proposed to introduce the right to holidays with economic compensation for women who do not earn the right

to paid holidays and holiday supplements or holiday compensation in order to improve the legal position of these women.

The right also includes paid holidays in the following holiday year provided that the female wage earner fulfils the

employment requirement in the Act on sickness and birth

Human Rights :

The bill concerns the conditions of women in the labour market when on maternity leave, and it ensures equal treatment

between the sexes and between women, so that women who are not members of a union insurance system and have no other

right to economic coverage during holidays obtain the right to economic coverage for holidays in the holiday year to follow.

Assessment by the Institute :

The Institute has not been invited to comment.

Reference:

Act no. 1153 of 19 December 2003.


Entry into force on 1 January 2004.

2. Danish court decisions

Supreme Court:

No judgements with reference to the Convention have been handed down during the period under review.

Eastern and Western High Courts:

No judgements with reference to the Convention have been published during the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the Convention have been published during the period under review.

4. Judgements of the European Court of Human Rights

No judgements or decisions concerning the Convention have been published with Denmark as a party to the case during the

period under review.

5. Opinions of and concrete cases before the Committees

6. Government initiatives

Report from the Maternity Fund Committee on maternity equalization arrangements

Based on Proposal for a parliamentary decision B82 of May 2003 concerning maternity equalization arrangements the

Government established a committee of public servants to analyze the social consequences of a national maternity

equalization arrangement, including consequences regarding gender equality while at the same time preparing possible

models for a national maternity equalization arrangement. The committee published its report in April 2004.

7. Miscellaneous

Decisions of the Gender Equality Board

The task of the Gender Equality Board is to handle concrete complaints about differential treatment based on gender. Any

citizen can complain to the Board free of charge e.g. concerning job announcements which search for applicants of one

specific sex, in case of differences in salaries or dismissal because of the sex of the employee. A decision could lead to

awarding the complainant compensation or overruling a dismissal.

The Consumer Ombudsman

Cult Shaker commercial – contrary to fair trading practices and the “Guidelines for sexual discrimination in commercials”

of the Consumer Ombudsman. The Consumer Ombudsman received more than 100 complaints over Cult Scandinavia

ApS’s commercial for Cult Shaker, which had been posted by bus stops and on display pillars. The commercial presented

two naked women intimately embracing each other and the text was “Enjoy Shaker – with a twist”. One of the women held

a bottle of the product in her hand.


The Consumer Ombudsman stated that the commercial for Cult Shaker had a clearly sexual content on the verge of

pornography. The commercial was certain to offend and provoke and it was considered an aggravating factor that it was an

alcohol commercial. When marketing alcoholic products, the commercial must not be or have the effect of being obtrusive

and provocative, including linking sex and alcohol. In the view of the Consumer Ombudsman, the marketing of Cult Shaker

was unethical and contrary to fair trading practices, cf. Article 1 of the Marketing Practices Act. Furthermore, it constituted

a violation of the “Guidelines for sexual discrimination in commercials” of the Consumer Ombudsman according to which

persons in commercials must not be reduced to sex objects. This kind of deliberately provocative marketing, which also

offends and insults a considerable number of persons, is according to the Consumer Ombudsman unethical and should not

take place. The company did not agree with the Consumer Ombudsman but chose to take down the posters.

Opinion on the equal right to divorce for both sexes

By letter dated 24 November 2003 the Ministry for Integration requested the Institute to analyze the equal access to divorce

for both sexes, and the human rights issues that a proposal especially concerning Muslim women’s possibility to obtain

divorce on the same terms as Muslim men could raise. The Institute was also requested to present possible solutions.

Summary of the statement by the Institute:

The right to equal access to divorce.

According to Danish law, Muslim women have an actual and legal unconditional access to divorce, if the normal conditions

are fulfilled. The right to divorce is not protected by human rights. The Institute still finds that the state has an obligation to

protect women against sexual discrimination and thus ensure that women in practice are equal to men concerning access to

divorce. The state’s human rights obligation to ensure gender equality in relation to the dissolution of marriage appears from

Article 23 of the CCPR and the interpretation of the Human Rights Committee of the general principle of equality in Article

26 and Article 16 (1) (c) of CEDAW. Article 12 of the ECHR only protects the right to enter into marriage. In preparing the

statement, the Institute has assumed that any Danish proposal concerning the possibility of Muslim women to obtain divorce

on equal terms with Muslim men would contain proposals to 1) enter a clause on mutual recognition of the right to divorce

in the marriage contract between a Muslim man and a Muslim women; 2) make this marriage contract a condition for family

reunification; 3) order the imams to offer religious recognition of the divorce.

1) Divorce clause in the marriage contract – the right to freedom of religion and prohibition against discrimination.

The infringement of the freedom to religion is deemed legitimate and proportional, as the principle of equality between the

sexes is central in Danish society. It is not considered discriminatory, but rather an expression of objective differential

treatment, assuming that unequal access to divorce does not exist with other religious minorities.

2) Clause as additional requirement for family reunification – respect for the family and the right to family reunification.

Basically, the Institute finds that the clause can be introduced as a precondition for family reunification. The determination

of the clause’s compliance with Article 8 of the ECHR will rely upon a concrete assessment of the facts of the case,

including an evaluation of the actual possibility for establishing a married life in the country of origin.

3) Orders to imams on religious recognition – freedom of religion and equality.


The freedom of religion contained in Article 9 of ECHR is a relative right and can thus be limited if it is deemed necessary

in a democratic society and if it is also proportional. An order for religious recognition of divorce is not considered

proportional to the intended goal – i.e. is the actual equality between the sexes in relation to divorce. Such an order will not

be required in a human rights sense and will thus violate the right to religion. The Institute recommended the following

solutions: The protection of equal access to divorce should be sought outside the legal context, as there is an inherent risk of

violation of human rights in the proposals made.. Instead, measures should be taken to establish dialogue, compulsory

teaching of the women and the imams, and other preachers of faith with the competence to perform marriages according to

Danish legislation. The Institute proposes that a representative working group be established to examine the possibilities for

the practical implementation of equal access to divorce for Muslim women.

Statistic report on gender related differences in salaries between the private and the (county) municipal sector.

The report, which was published on 1 November 2004, is a statistic description of gender related differences in salaries in

the two sectors in 2002. Among other things, the report shows that women’s proportion of the male salary is about 83%

both in the (county) municipal and private sector. When further factors such as education or age is taken into consideration

so more homogeneous groups are compared, the women’s proportion of the male salary typically increases. This is,

however, only typical for the (county) municipal sector; in the private sector there is no such unambiguousness.

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).

ILO Conventions No. 138 and No. 182 on Prohibition of Child Labour.

Articles 24 and 32 of the Charter of Fundamental Rights of the European Union.

1. Bills

Title:

Proposal for a parliamentary decision on the rights of the child in society

Background:

It is mentioned that the National Council for Children in its reply to Denmark’s third report to the UN Committee on the

rights of the child points out several issues, including lack of consequence in the involvement of children and lack of

complaints mechanisms for children.

Purpose:

The intention of the presenters is to ensure children and young people greater influence on decisions which affect their

public life, e.g. by involving them in decision making processes in schools, recreation centres etc., in order thus to

strengthen the children’s democratic skills and ensure their right to participation. It is suggested to introduce the ICRC as

part of primary education curriculum to ensure the children’s knowledge of their rights, referring in this connection to

Article 42 of the ICRC, according to which the member states have an obligation to “make the principles and provisions of

the Convention widely known, by appropriate and active means, to adults and children alike.” Among other things, this

increased knowledge has the purpose of making the children aware of their value as human beings and promoting mutual


espect among children and thus preventing violations of children’s rights and helping children to seek counsel and aid or

setting limits if their rights are violated. Furthermore, the children will be made aware of their access to complain, which the

presenters wish to improve, e.g. by establishing a directly accessible place to approach.

Human rights:

The proposal intends to promote the rights of children and young people, including greater democratic participation and to

ensure them real access to complain. According to Article 12 of the ICRC, children and young people have a right to

participation.

Proposal rejected.

Title:

Proposal for a parliamentary decision on the incorporation of the UN Convention on the Rights of the Child into

Danish law

Background:

The Government-appointed Incorporation Committee presented its report in 2001 on the incorporation of human rights into

Danish law (report no. 1407/2002). The Committee examined the possible advantages and disadvantages in connection with

the incorporation of certain UN conventions. Based on the criteria which the Committee found decisive in relation to

selecting conventions that are suitable for incorporation, the Committee recommended that the ICRC not be incorporated at

this time. The report was distributed for comments a.o. to the National Council for Children, the Danish Youth Council,

Landsforbundet DUI-LEG og VIRKE (a Danish youth organization) and Save the Children and the comments concerning

ICRC essentially recommend incorporation of the Convention into Danish law.

Human rights:

It is proposed to incorporate the UN’s Convention on the Rights of the Child into Danish law.

Assessment by the Incorporation Committee:

The Committee characterizes the Convention as a ”special Convention” as opposed to ICCPR and ICESCR which are

characterized as being “general” as they protect anyone. However, ICRC is deemed “central” for the protection of human

rights, e.g. because of the large group of people that is covered by ICRC, i.e. all persons below the age of 18, and the special

need for protection of this group as well as the broad international support of the Convention. According to the Committee,

against incorporation goes the fact that some of the provisions are vaguely formulated, e.g. Article 18 (2) and Article 23,

and thus not ”suitable” as legal grounds for the settlement of disputes. The lack of an individual complaint mechanism is

also found significant in this connection as it must be added that the Committee has not adopted general recommendations

concerning interpretation and use of ICRC, as these circumstances mean that at present there is no sufficient interpretative

aid that can clarify content and scope of the material provisions of the Convention. The Committee finds that initially

incorporation should only comprise a limited number of conventions in order to gain experience, and in this connection

gives higher priority to the “general” Conventions ICCPR, ICAT, ICERD than to ICRC.

Purpose:

The presenters find that the selection of conventions for incorporation should be based on an assessment of each individual

conventions – the number should not be decisive – and on the basis of political priorities. In this connection it is mentioned

that the international value, including the opportunity to promote Denmark as a pioneer concerning the rights of the child, of


the incorporation, should be a key argument in the discussion on incorporation. In addition there is a political need to stress

the individual position of children and young people as legal persons, which is exactly one of the special values of the

convention, together with the need to ensure the legal position of this vulnerable group. As to the “suitability” of the

convention the presenters find that there is sufficient basis for interpretation of the provisions through the work of the

Committee and the reporting system. Furthermore, incorporation will in itself lead to more interpretation. Consequently, the

presenters have few doubts as to the incorporation in this context. In general they refer to the advantage of establishing a

legislative basis for the authorities applying the law and the increased awareness and attention for the existence of the

ICRC. The presenters also refer to the fact that in its recommendations to Denmark in connection with Denmark’s second

report in pursuance of Article 44, the Committee on the Rights of the Child encouraged the Government to consider

incorporation of ICRC.

Assessment by the Government:

The Government does not find that the ICRC should be incorporated, for the reasons presented by the Incorporation

Committee, but also because the Government regards the incorporation as legally superfluous, given that the Convention is

already a relevant source of law and is being observed in accordance with its content.

Assessment by the Institute:

The Institute was consulted in connection with Parliament’s discussions on the incorporation of UN Conventions and a

letter was prepared in December 2003 together with other organizations working with children’s rights in Denmark and thus

the views of the Institute were presented.

The Institute does not find that the argument of the Incorporation Committee that the vaguely formulated provisions of

ICRC speak against incorporation can in itself be decisive. The courts and administration are used to dealing with vaguely

formulated provisions, and it follows from general rules for interpretation that the more vaguely a provision is formulated,

the lesser the degree to which the citizen can base his claim on it. The vaguely formulated provisions are therefore not

considered a problem in relation to the balance of power between the courts and Parliament. Considering that a number of

provisions in the conventions are not vaguely formulated and should be incorporated, the vaguely formulated provision

should not hinder the incorporation of the provisions that are formulated in such a way that the citizen can base a claim on

them. The Legal Affairs Committee is encouraged to gather experience from countries that through ratification have made

the ICRC part of national legislation without an actual incorporation being necessary. This applies to a large number of

Southern European countries

The fact that no individual access to complain has been established in connection with ICRC does not in itself constitute an

argument against incorporation. That the observance of the provisions of the convention is not ensured internationally is no

reason not to clarify that observance can be ensured nationally. Concerning the lack of authoritative interpretation of the

provisions, it is stressed that Danish court are able to make their own interpretation. It is further stressed that the Committee

on the Rights of the Child has emphatically urged Denmark to incorporate the conventions and in this connection stressed

the importance of incorporation as a demonstration of commitment.

Consequently, the Institute does not regard the arguments of the Incorporation Committee as sufficient reason not to

incorporate the ICRC.

Proposal rejected.


Title:

Draft order concerning detention and order on the use of force by the police

Background:

The order is to regulate detention of intoxicated persons, including children between the age of 12 and 15. It is proposed to

put a lower age limit (12 years) for detention (cf. draft Article 1 (3)) and that children between the age of 12 and 15 years

can basically not be detained for more than 4 hours. Also, detention can only take place when any other arrangement will be

unjustifiable for safety reasons due to the behaviour of the child. According to Article 12 of the draft there is no total

prohibition of detaining a child and an adult in the same cell.

Human rights:

The draft concerns the deprivation of liberty of children. Article 5 of the ECHR and Article 37 (b) protecting children

against unlawful and arbitrary deprivation of liberty and also stating that the deprivation of liberty can only be used as a

measure of last resort and for the shortest appropriate period of time, together with Article 37 (c), are especially relevant.

The relevant human rights protection is also to be found e.g. in Article 3 of the ICRC concerning the best interests of the

child and Article 12 on the right of the child to express its views and to be heard.

Assessment by the Institute:

In general the Institute welcomes the proposed clarification of the legal basis for detention in the light of human rights. The

lower age limit excluding children below the age of 12 from detention is also positive. However, the Institute points out that

the use of detention of intoxicated persons is a protective measure in order to assist such persons. The Institute finds it

regrettable that the right of the detained child to be heard is not part of the draft. It is therefore important to stress the

obligation of the police to inform and communicate with the child. According to Article 5 (1) of ECHR as well as practice

the reasons for deprivation of liberty should be interpreted closely. The Institute consequently finds that an intense

assessment of proportionality is required, not least in view of the mental vulnerability of children. Less radical measures

such as drying-out in hospitals should be considered. In order to stress that detention of children below the age of 15 is only

a measure of last resort, the provision (Article 1 (4)) should clearly state the exceptional nature of the measure. It is further

noted that if the general rule of providing a solitary cell (Article 12 (1)) is not followed, this may constitute a violation of

Article 37 (c) of the ICRC stating that every child deprived of liberty shall be treated with humanity and respect for the

inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age,

including the separation from adults. The Institute does not find that the draft order on detention ensures an intoxicated child

in a cell with several persons sufficiently against infringements. It is recommended to include an absolute prohibition of

placing children in detention together with adults, i.e. persons above the age of 18, as such placement will violate

Denmark’s international obligations pursuant to Article 37(c) of the ICRC.

Draft pending.

Title:

Bill amending the Primary Education Act

Background:

The bill concerns the right of parents to have their child admitted to another school than the district school where it belongs.

Human rights:


The bill relates to the right of the child to express its views in all matters affecting the child. This protection is found in

Article 12 of the ICRC which Denmark ratified in 1991. In the present draft there are no rules on the child’s possibilities to

express its views on such a change of school. The Primary Education Act does not contain any general rules either on the

child’s possibility to express its views on decisions affecting the child.

Assessment by the Institute:

When implementing Article 12 of the ICRC, states must realize that the provision means that, if the child wishes to express

itself, the opinions of the child must be included in decisions affecting the child, thus including the opinion of the child on a

given measure or infringement of the information considered by the deciding authority,. This protection includes all

children who are capable of forming their own opinion. A specific age limit like 12 years can thus not be applied. When

assessing the opinions of the child they should be considered and graduated in accordance with the age and maturity of the

child. Article 12 of the ICRC is applicable concerning e.g. choice of school. The Institute is of the opinion that according to

Article 12 of the ICRC, information on the opinion of the child’s view as to which school to be admitted to, must be

available before making any decision on which school the child should be admitted to, so this information can enter into the

considerations of the municipality on the solution of the case. The Institute finds that the bill ought to reflect the legal

position in accordance with Article 12 of the ICRC.

Bill pending.

Title:

Bill amending the Administration of Justice Act

Background:

The bill is to create a clear and exhaustive legal regulation of criminal procedural coercive measures towards children under

the age of criminal liability. An entire new chapter (75b) in the Administration of Justice Act is suggested to this effect.

This creates statutory authority to apply the coercive measures of the Administration of Justice Act towards children. A

special provision on proportionality (Article 821c) is included in order to sharpen the attention to the vulnerability of

children.

The Ministry of Justice does not regard the bill as contrary to the relevant provisions in the ICRC, i.e. Article 12 on the right

of the child to be heard, Article 37b and d concerning deprivation of liberty and Article 40 on legal guarantees.

Human Rights:

The bill concerns legal guarantees for children concerning criminal procedural coercive measures as covered by the right to

fair trial in Article 6 of the ECHR and ICRC which contains rules of significance for children’s legal position including

criminal procedural coercive measures

Assessment by the Institute:

By letter of 19 November 2003, the Institute was requested by the Ministry of Justice to comment on the report no.

1431/2003 of the Committee on Criminal Procedure concerning criminal procedural coercive measures towards children

below the age of criminal liability .

In this connection, the Institute drew the attention to the ICRC, which Denmark - in spite of the lack of incorporation -

through its accession has an obligation to observe. Not least Articles 12, 37 and 40 are relevant for the bill. Also Articles 5


and 6 of the ECHR, which also apply to children, should be included in the assessment of whether international obligations

have been respected. The Institute welcomes the creation of clear and exhaustive legislation concerning criminal procedural

coercive measures towards children below the age of 15, so that no measure can be taken without statutory basis. However,

the Institute regrets that in general the ICRC has not been included in the deliberations, especially the provisions mentioned.

The Institute recommends that the bill reflect Article 12 of the ICRC to a larger degree and that no statutory basis be

established for solitary detention. It is also recommended that children be given better access to legal counsel (lawyers), e.g.

concerning guidance about the right to remain silent and that the legal guarantees which according to the Administration of

Justice Act apply to the suspect are also made applicable to children below the age of criminal liability, who can not be

charged in the sense of the law, by introducing rules to this effect in the Administration of Justice Act.

Reference:

Act No. 443 of 9 June 2004.

Entry into force on 1 July 2004.

Title:

Act Amending the Act on Citizenship

Please refer to the chapter on the Right to Respect for Family and Private Life, Home, and Correspondence.

Title:

Act amending the Aliens Act and the Act on Integration

Please refer to the chapter on the Right to Respect for Family and Private Life, Home, and Correspondence.

Title:

Act amending the Primary Education Act

Please refer to the chapter on Rights of Ethnic Minorities.

2. Danish court decisions

Supreme Court:

Danish Weekly Law Reports 2004, p. 1047, Supreme Court (U.2004.1047H)

Two boys of 5 and 9 years of age were not exempt from giving evidence in a case in which their mother was accused of

violence against a child of 1½ years.

T1, a mother of two boys of 5 and 9 years of age, was together with her boyfriend, T2, charged with grievous bodily harm

to the 18 months old son of T2. The two accused gave conflicting statements, and as the boys according to the police had

been present at the time of the violent act, the police wanted to question the two boys. There was no reason to suspect the

boys of having caused any harm. The High Court ordered the boys to make statements. The Supreme Court agreed with the

High Court that the statements of the two boys were of decisive significance to the outcome of the case and found that the

nature and importance of the case justified ordering the boys to make statements. Such an order was not a violation of

Article 8 of the ECHR or Article 3 of the UN Convention on the Rights of the Child. Consequently the Supreme Court

upheld the decision of the High Court.

Eastern and Western High Court:


No judgements with reference to the rights of the child have been published during the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions with reference to the rights of the child have been published during the period under review.

4. Judgements of the European Court of Human Rights

No judgements with reference to the rights of the child have been published during the period under review.

5. Opinions of and concrete cases before the Committees

The Committee on the Rights of the Child has not examined Denmark during the period under review.

6. Government initiatives

Report of the Ministry of Education on the legal aspects of composing classes on the basis of ethnic origin

Please refer to the chapter on prohibition of discrimination.

Report of the Ministry of Education on the legal aspects of creating special schools for bilingual children.

Please refer to the chapter on prohibition of discrimination.

Assistance to children of substance abusers and psychiatric patients

The Ministry of Social Affairs informed in September 2004 that 61 million DKK would be spent over a period of four years

for 38 projects nationwide. The projects focus on interdisciplinary and intersectoral measures for the children of substance

abusers and psychiatric patients.

Action Plan against child abuse

The Action Plan was presented by the Minister for Social Affairs in March 2004 to comply with the conclusions from a

memorandum prepared by the Danish National Institute of Social Research about child abuse. Due to the high vulnerability

of this group, the main focus of the Action Plan is on serious violence committed by parents or other guardians to small

children up to the age of 7 years. The Action Plan is to improve prevention of child abuse e.g. by targeted work with

vulnerable groups and by highlighting the problem through information campaigns and education of both professionals and

private individuals so cases of abuse can be discovered early. It is also suggested that a time limit be fixed by law within

which a municipality must have taken action upon a notice and that guidelines for the handling of child abuse cases be

prepared. Furthermore, it is recommended that steps are taken to ensure that knowledge about the symptoms of child abuse

constitute an element in the education of relevant professionals.

7. Miscellaneous

Criticism raised in the spring of 2004 in report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights for the Council

of Europe, on his visit to Denmark 13 th -16 th April 2004.

The report suggests that the rules for family reunification of children be amended by changing the maximum age limit of 15

years in Article 9 (1) (2) of the Aliens Act to 18 years in compliance with the principles in ICRC. The Government

argument for lowering the age limit from 18 to 15 years is regard for the integration of children, including avoiding cases


where the children are educated in the country of origin and then brought to Denmark shortly before turning 18. The

Commissioner mentions that the Council of Ethnic Minorities assesses this to be a practice of limited scope. The

amendments are considered to have negative consequences beyond their intended aim. The state’s obligation according to

ICRC to attend to the interests of the child in matters concerning the child and the right of the child to grow up with its

family pursuant to Article 10 implies that children are given the opportunity to apply for family reunification. Family

reunification of children above the age of 15, who are also covered by ICRC, can formally be granted in pursuance of the

exception in Article 9 c of the Aliens Act, which however, is not considered an appropriate procedure. These children

should be guaranteed a clearer legal position concerning their fundamental rights.

Report by OECD’s Education Committee on the Danish primary and lower-secondary school

In its report of June 2004 the OECD Committee examines the Danish primary and lower-secondary school. One of the

findings is that 9,5 per cent of the pupils in elementary school are bilingual. The Committee recommends that both recently

arrived bilingual children and bilingual children who are growing up in Denmark be offered language teaching. The

Committee found it inexpedient that the language lessons took place at a time where other teaching was going on thus

forcing the bilingual pupils to miss the ordinary lessons. Consequently the Committee recommends that this practice be

changed and the language teaching be offered outside the normal teaching hours. Furthermore the Committee warns against

perceiving cultural and linguistic differences as intellectual or behavioural problems.

The report is available at: http://eng.uvm.dk/news/approval.htm?menuid=05

Hostel for girls of other ethnic background than Danish

Together with the St Luke Institution, Save the Children, Denmark, opened the hostel ”Kastaniehuset” for young girls

between 14 and 18 years of age affected by domestic conflicts. The hostel which opened on 1 October 2004 has room for 8

girls. It is intended for girls affected by serious conflicts with their parents on education, lifestyle and choice of partner.

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.

The European Convention on Human Rights, Article 14

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any

ground such as gender, race, colour, language, religion, political or other opinion, national or social origin, association with

a national minority, property, birth or other status.

1. Bills

Title

Draft bill amending the Act Prohibiting Differential Treatment in the Labour Market etc. (introducing age and


disability as criteria in the Act.)

Background:

The draft bill is to implement parts of the Council directive 2000/78/EC on a general framework for equal treatment

concerning employment and occupation (the employment directive). According to the draft bill it will constitute direct

discrimination if an employer avoids to employ, discriminates or dismisses an employee because this person is disabled or

belongs to a specific age group, and it will constitute indirect discrimination if an employer lays down terms which will be

to the disadvantage of employees belonging to a specific age group or of disabled employees, unless the conditions are

objective and proportional in relation to the work in question. Furthermore the employer is obliged to adjust the work place

to a reasonable extent in order to give disabled persons access to employment, unless this will constitute a disproportionate

burden.

Human rights:

The draft bill relates to the prohibition against discrimination based on disability or age. The prohibition against

discrimination is a basic human right protected by Article 26 of the ICCPR, which is an ancillary right, and in Article 14 of

the ECHR. The right to work is protected by Article 6 (1) of the ICESCR. The prohibitions against discrimination based on

age and disability are covered by the non-exhaustive mention of discrimination criteria above. The discrimination approach

to disability and age manifests itself e.g. in the UN Standard Rules on Equalization of Opportunities for Persons with

Disabilities of 1994 and the UN Action Plan about Age of 2002.

Assessment by the Institute:

In general the Institute welcomes the proposal to implement a legal prohibition against discrimination based on disability

and age.

However, the Institute finds it necessary that complaints about discrimination based on age and disability can be handled by

an administrative complaint mechanism in order to place these complaints on an equal footing with discrimination based on

sex or ethnicity and avoid any hierarchy between criteria for discrimination. Furthermore the establishment of such an

administrative complaint mechanism for these cases will give the individual a relatively easy and fast access to complain at

no cost.

The Institute recommends that complaints handling concerning discrimination be gathered in one complaints mechanism for

all kinds of discrimination. Such a gathering will show that all forms of discrimination are considered equally serious and

should enjoy the same efficient protection. A joint complaints mechanism will also be more well-arranged for the individual

complainant as double discrimination is frequent e.g. in relation to ethnicity and disability at the same time.

Concerning the disability criteria, it is recommended to apply the concept “disability” instead of ”handicap” in accordance

with the UN Standard Rules of 1994. A handicap is a loss or a limitation of possibilities which emerges in the meeting

between a person with a disability and his/her surroundings. The Institute also recommends that the text uses ”person with a

handicap or a disability” instead of ”handicapped person or the handicapped”. The purpose is to avoid equating the fact that

a person has a disability and the fact that the person is handicapped, i.e. limited in his/her possibilities. The Institute

recommends that either directly in the Act or in the comments to it, it is made clear that equal protection applies to persons

who are being discriminated against, in all situations whether they have or do not have a specific disability.

Draft pending.


2. Danish court decisions

Supreme Court:

No judgements concerning the rights of the disabled have been handed down during the period under review.

Eastern and Western High Courts:

No judgements concerning the rights of the disabled have been published during the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the rights of the disabled have been published during the period under review. The Parliamentary

Ombudsman inspects public buildings on an ongoing basis. The inspections serve among other things to examine the

accessibility of the buildings and the utility of their conveniences for persons with disabilities. One example is an

examination of accessibility at all train stations. When public buildings are inspected a person using a wheel chair takes part

in the inspection in order to expose the actual need for changes etc. to the building.

4. Judgements of the European Court of Human Rights

No judgements or decisions concerning the rights of the disabled have been published with Denmark as a party to the case

during the period under review.

5. Opinions of and concrete cases before the Committees

6. Government initiatives

The Government’s IT projects for the disabled.

On 1 March 2004, the Minister for Science presented two new IT projects for the disabled with the purpose of improving

the access of persons with disabilities to the Internet society. The projects establish voice activated navigation on the

Internet and Linux for blind and visually impaired persons. The projects are sponsored by an investment pool established as

part of the Government’s IT and telecommunication action plan for persons with disabilities (“Disability not a

disincentive”).

Brochure. About the use of force and other infringements on the right of self-determination

The brochure is intended for staff working with adults who are severely mentally disabled. The purpose is to increase the

legal protection for persons with mental disabilities who are not capable of realizing the consequences of their choices and

actions and who are not in a position to offer informed consent. This includes limitations on the use of force and other

infringements on the right to self-determination to an absolute minimum. The booklet explains the use of alarm and paging

systems, special door openers, fixation etc. The booklet stresses that as a rule the use of force or coercive measures are

never permitted when caring for human beings, as all human beings have a constitutional right to decide over their own life.

However, people who are severely mentally disabled can end up in a situation where the individual right to selfdetermination

would imply that he or she exposes him- or herself to danger, which can legitimize infringements on the right

to self-determination. It is stressed that the use of force must never replace care, nursing and socio-educational assistance,

that the use of force presupposes that the mental disability is documented and that it must always be attempted to make the

person co-operate voluntarily. Furthermore, the principles of proportionality, legitimacy and lenience are highlighted.


Booklet about care and power in relation to the disabled

On 15 September, the Ministry of Social Affairs published a booklet concerning the balance between appropriate care and

the failure to care. Concretely the booklet describes the purpose of the rules on the use of force and briefly outlines the

individual rules concerning alarm and paging systems; especially door openers, fixation and retention and admittance to

special housing without consent.

7. Miscellaneous

The Danish Institute for Human Rights plans to publish a report early in 2005 concerning persons with disabilities in

Denmark.

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.

ILO Convention No. 169 the Indigenous and Tribal Peoples Convention.

Article 22 of the Charter of Fundamental Rights of the European Union.

1. Bill

Bill amending the Act on Integration (making the integration councils optional)

The proposal to make the municipal integration councils optional is not in itself considered a violation of Denmark’s human

rights obligations. However, the Institute wishes to stress the obligations of the Danish State e.g. under Article 26 of the UN

Covenant on Civil and Political Rights, the UN Convention on the Elimination of All Kinds of Racial Discrimination and

Article 14 of the European Human Rights Convention to take positive measures to fight discrimination by promoting

equality and integration of ethnic minorities

Act No. 1206 of 27 December 2003

Title:

Act amending the Primary Education Act

(Compulsory language stimulation of bilingual pre-school children)

Background:

The amendment expands compulsory education for bilingual children from the age of 3 who, following a professional

assessment are found in need of language stimulation. The aim of the amendment is to ensure that all bilingual children

have a sound linguistic basis commensurate with their age when they start in school, thus improving the potential

integration of these children including the improvement of their access to the education system and the labour market.

Assessment by the Institute:

By letter of 1 April 2004 the Directorate of Education has requested the Institute to comment on the abovementioned bill.

Basically, the Institute agrees that the aim should be that bilingual children have a command of Danish when starting in

school. Still the Institute finds that language stimulation should take place through information to the parents about the


importance of language teaching and by involving them in this decision, thus promoting parental responsibility and

cooperation. Language stimulation should therefore be an offer and not appear as a coercive measure in accordance with the

Primary Education Act stating that the school should be a place with sufficient room to accommodate different kinds of

children. Through the amendment this principle is turned upside down as the child is required to accommodate to the

school.

The Institute finds that, if the aim as stated in the comments to the bill is to strengthen the Danish language skills of the

children, mother-tongue teaching should be reintroduced and offered to the bilingual children, as solid knowledge of one’s

own mother-tongue is known to ease the learning of foreign languages. It is also noted that according to ICRC Denmark is

obliged to ensure that children of minorities have the possibility to maintain their mother-tongue. The Institute regrets that

the comments to the bill do not state whether the bill is in compliance with ICRC, whereas it is stated that the bill is

considered to be in compliance with Article 14 of the ECHR together with Article 12 of the Additional Protocol on the right

to education.

The Institute has no further comments concerning human rights aspects.

Act No.477 of 9 Jun 2004.

Entry into force: 1 August 2004.

2. Danish court decisions

Supreme Court:

Danish Weekly Law Reports 2004, p. 382, Supreme Court (U.2004.382.H)

In the High Court the members of the Thule tribe had been awarded compensation for the compulsory transfer due to the

expansion of the US Air Force Base in North western Greenland. The members of the Thule tribe appealed the decision

claiming 235.114.290 DKK. 77 members maintained their earlier claim for 250,000 DDK compensation to each of them.

The Supreme Court established that the Thule tribe does not constitute a tribal people or an individual indigenous people

pursuant to Article 1 (1) of the ILO Convention of 1989 about indigenous and tribal peoples in independent countries. This

concurs with the statement of Denmark when ratifying the ILO Convention. This statement was presented with the consent

of the Greenland Home Rule.

Although the Thule tribe is not covered by the ILO Convention about indigenous and tribal peoples in independent

countries this does not impede the members of the tribe from instituting proceedings, as the members constitute a

sufficiently clearly defined group, and the Prime Minister’s Office claim for dismissal was not allowed.

The Supreme Court did not find reason to increase the compensation awarded by the High Court. The Supreme Court found

that the members’ claim for individual compensation of DKK 250,000 could not be justified, as the members of the Thule

tribe had received full compensation for re-housing and moving expenses and could therefore only claim compensation for

injury to their feelings in relation to the transfer. The Supreme Court therefore upheld the decision of the High Court and the

members of the Thule tribe were each awarded DKK 25,000 or DKK 15,000 depending on whether they were above or


elow the age of 18 at the time of the compulsory transfer.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the rights of minorities have been published during the period under review.

4. Judgements of the European Court of Human Rights

No judgements or decisions concerning the rights of minorities have been published with Denmark as a party to the case

during the period under review.

5. Opinions of and concrete cases before the Committees

The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR)

Comments of the Committee concerning Convention No.169, Indigenous and Tribal Peoples Rights:

The Committee notes that Denmark’s report for 2004 has not yet been received. The Committee thus repeats its earlier

comment and requests the Government to clarify the following:

The Supreme Court decision in the Thule case and measures taken or planned in order to compensate persons who have

suffered losses due to the transfers in Greenland. And which measures have been or will be taken in order to ensure that no

Greenlander is transferred in the future without full consent, and if this is not possible only in accordance with procedures

that comply with Article 16 or the Convention.

6. Government initiatives

Report of the Ministry of Education on the legal aspects of creating special schools for bilingual children.

Please refer to the chapter on prohibition of discrimination.

Report of the Ministry of Education on the legal aspects of composing classes on the basis of ethnic origin

Please refer to the chapter on prohibition of discrimination.

Report concerning the Council of Europe Framework Convention for the Protection of National Minorities.

During the period under review Denmark has presented its second report pursuant to the Council of Europe Framework

Convention for the Protection of National Minorities.

Report No. 1446/2004 on personal names

Please refer to the chapter on the Right to Respect for Family and Private Life, Home, and Correspondence

.

The Government Strategy against ghettoization

The Strategy has been prepared by the Ministry of Integration Affairs, Ministry of Economic and Business Affairs, Ministry

of Finance, Ministry of Education, and the Ministry of Social Affairs and was presented to the press in May 2004. It is the


goal of the Government to stop the trends towards ghettoization and to redress the problems in these areas. A model for the

assignment of council housing, a number of specific integration initiatives concerning crime prevention, extra tuition,

voluntary work, etc are presented for the most affected housing areas.

The fourth report of the Think Tank of the Ministry for Refugees, Immigrants and Integration: “Alien and integration policy

in Denmark and select countries”.

The report compares the alien and integration policy in Denmark to other Western countries. The report shows that

Denmark has tighter rules for family reunification than the other countries, and that Denmark together with Sweden and the

Netherlands are the only countries which have an actual programme for the integration of newly arrived foreigners. The

report also compares the main social benefits and how the integration of foreigners progress in the countries. The Think

Tank recommends certain changes to Denmark’s alien and integration policy, e.g. that asylum seekers should have the right

to work, that the Danish language skills of bilingual children should be tested during their time in school and that

possibilities for immigration of highly skilled labour should be improved.

Title:

Report No. 1442/2004 – Report of the Commission on Greenland’s Judicial System

Purpose:

Due to the development in the Greenlandic society over the last 40 to 50 years, the Commission on Greenland’s Judicial

System was established in 1994 by the Danish Government and the Greenland Home Rule to examine and thoroughly revise

Greenland’s judicial system with particular emphasis on the legal basis of the judicial system – including the preparation of

a proposal to amend the present Greenlandic Criminal Code from 1954 and the Administration of Justice Act from 1951 –

as well as the organization of the police and the prison and probation service.

In general, the updating is to ensure that the Greenlandic judicial system lives up to its international human rights

obligations. However, the terms of reference also stress that the amendments to the widest possible extent should take into

consideration the peculiarities of the Greenlandic judicial system, including the prevailing special geographic, linguistic and

cultural conditions.

The Commission’s proposals:

The Administration of Justice Act

The report proposes several measures to increase the quality of the administration of justice. Among other things, it is

mentioned that a new administration of justice act should regulate civil procedural judicial questions like e.g. prosecution

issues to a wider extent than at present. The same applies to the criminal procedural questions where a more extensive

regulation of criminal procedural coercive measures is needed. For instance, it is suggested to introduce Danish legal

guarantees for solitary confinement, rules for body search, which have so far been conducted according to the rules for

ordinary search, and tightening of the conditions for infringement e.g. on the right to respect for confidentiality of

correspondence. It is also recommended to put into statutory form the principles of proportionality and lenience and to

strengthen certain basic procedural principles like the principle of direct evidence and open trials through a clarification of

the instances where the principles can be derogated e.g. in the case of prohibition of the publication of names of suspects,

reporting restrictions and closed doors, etc.

Legal guarantees


The Commission recommends measures to ensure the citizens better access to justice e.g. by establishing national legal aid,

regulating access to free legal aid in the Administration of Justice Act, which is found appropriate as court fees are also

suggested at the same time.

The organization of the courts (the Municipal Courts)

So far, the judges in the Municipal Courts of first instance have not been jurists. The office did not require neither special

legal nor educational qualifications. Based on comments from the Ministry of Justice and the Danish Centre for Human

Rights (now: Institute for Human Rights) the Commission finds that the system of lay judges at the Municipal Courts is in

accordance with the formal conditions for constituting a court, thus complying with the Constitution and the ECHR, and the

Commission therefore in accordance with the terms of reference recommends to maintain the lay judges in consideration of

“the Greenlandic element” of the administration of justice. The strength of the system consists in the lay judges’ knowledge

about local conditions, especially the language, while the lack of legal expertise presents a problem. It is recommended to

ensure the professional qualifications of the judges through a special education for Municipal Court judges. It is also

recommended to introduce permanent employment and better salary in order to solve the present problems in recruitment of

Municipal Court judges, an office which has so far been a public duty.

In relation to the independence of the Municipal Court judges, the Commission recommends to establish a Council of

Judges, which will manage employment and dismissal of the Municipal Court judges, besides making their employment

permanent, as the suggested permanent employment will weaken the independence of the judges; a crucial legal guarantee,

cf. Section 64 of the Constitution and Article 6 (1) of the ECHR

To further strengthen the professional level of the Municipal Court it is deemed appropriate to establish an independent

legal court of first instance (the Court in Greenland) to handle legally complicated cases, guidance and education of the

Municipal Court judges. The Greenland High Court thus becomes appeal court for cases handled by the Municipal Courts as

first instance and the Eastern High Court will no longer be part of the Greenlandic administration of justice, which is

important in order to improve the independence of the legal system of Greenland. The Supreme Court remains the superior

court of the Realm in accordance with the Constitution.

The position of the defence

In general it is recommended to pay increased attention to the position of the victim, e.g. through better access to support

and economic compensation, whereas the Greenlandic criminal justice has traditionally primarily paid attention to the

offender with a view to re-socialization.

Based on criticism e.g. from Danish lawyers of the system of lay legal assistants in the Municipal Courts for being

unwarrantable seen from a legal protection point of view, and in order to live up to the requirements of the ECHR, cf.

Article 6 about adequate defence, it is proposed to strengthen the position of the defence by establishing a defence education

and to open a “hotline” with a lawyer’s office in Nuuk. It is suggested to change the terminology from “legal assistant” to

“defence council” in order to clarify the position of the defence. It is also recommended to include a minimum time required

for preparation of the defence in the legislation.

The prison and probation service


The Commission has studied the prison conditions in Greenland i.a. in order to abolish the former criticized arrangement

whereby Greenlanders sentenced to secure detention were sent to Herstedvester Prison (in Southern Denmark). The

proposal of the Commission to establish a secure detention facility in the institution in Nuuk for the dangerous criminals

who today serve their indeterminate sentences in Herstedvester Prison and to open a new open institution on the East Coast

will not only enable the Greelanders to serve their sentences closer to home but also constitute a step towards greater

independence in Greeland’s legal system. In the psychiatric treatment system, however, it is still not possible to transfer the

patients/those serving sentences from the secure institution in Nykøbing Sjælland (in Southern Denmark) to Greenland. At

the moment there are 18 ethnic Greenlanders in Herstedvester Prison. Several of them have been in the prison for 10 to 15

years.

The two suggested secure facilities will also contribute to the needed adjustment of the entire system of sanctions. So far

there have been four open facilities in Greenland but no secure ones. The suggested form of community service as a new

measure, known from Danish law, is not considered a violation of Article 4 (2) of the ECHR, Article 8 (3) of the CCPR or

the ILO Conventions No. 105 about abolition of forced labour (1957) and No 29 on forced labour (1930), as the measure

entails meaningful employment which is limited in time.

In relation to the conditions in the facilities, improvements are also suggested during the period serving time such as

improved employment possibilities, new offers of treatment and greater self-management in accordance with international

recommendations for the treatment of inmates.

It is suggested to improve the procedural guarantees of those convicted by establishing a Police Complaints Board as well as

extended access to judicial review of certain decisive administrative decisions

Children

The Commission proposes to introduce a provision in the Criminal Code similar to Article 223 a of the Danish Criminal

Code, as criminalization of customers to prostitutes below the age of 18 is deemed in accordance with various national and

international measures with the aim of fighting various forms of child abuse. As an example the Nordic Council of

Ministers adopted a recommendation in 1996 on the abolishment of sexual abuse of children.

Child pornography is not criminalized in the Greenlandic Criminal Code but the Commission also proposes to introduce a

provision similar to Article 235 of the Danish Criminal Code, which was extended with part 2 on the basis of international

recommendations from the Council of Europe, UN and the Nordic Council of Ministers. The criminalization is also

expected to have a preventive effect as well as to express a symbolic rejection of sexual abuse of children.

The Commission also proposes to introduce a provision in the Criminal Code similar to Article 230 of the Danish Criminal

Code, criminalizing the use of youth under the age of 18 as ”porn models”, as the present protection of children below the

age of 15 as well as the general provision on running a brothel in Article 55 of the Criminal Code is not regarded as

sufficient. In this connection the Commission has stressed the international legal obligations of the state in relation to the

ratification of ILO Convention No. 182 on the abolishment of the worst forms of child labour adopted on 17 June 1999.

Discrimination

The prohibition against discrimination in the Criminal Code is extended to protect against discrimination based on sexual


orientation.

The language

No formal changes to the court languages, which according to the present Administration of Justice Act are Danish and

Greenlandic, are suggested; however the Commission stresses that the Greenlandic language basically should be secured

within the judicial system and remain the court language. Some measures are already initiated, like formulating essential

legal documents in both Danish and Greenlandic unless the citizen is totally bilingual. In cases where it is not possible to

use Greenlandic efficient translation must as far as possible be available. Consequently the Commission recommends

putting into statutory form that the indictment and lists of evidence must be written in or translated into a language which

the accused understands.

Human rights:

The Commission’s proposals of human rights relevance mainly consisted in the proposal to abolish the practice of sending

Greenlanders to Herstedvester Prison, a practice which in certain concrete cases could tend to be in violation of Article 3

and Article 8 of the ECHR on the right to family life as noted by the Danish Centre for Human Rights (now Danish Institute

for Human Rights) in a report to the Commission dated 19 August 1994. Also in 1994 when the Commission was

established, Amnesty International brought to the attention of Commission the organization’s concerns at this practice.

Serving a sentence more than 4,000 km away from home is a considerable infringement of the way of life of the

Greenlanders – especially because of cultural differences, the distance, language problems and the uncertainty on the length

of the sentence as well as increased difficulties in re-socialization upon return to Greenland. This unwanted effect was

pointed out in connection with the visit to Denmark in the autumn of 1996 of the European Committee for the Prevention of

Torture.

7. Miscellaneous

Special classes for Roma children

The municipality of Ellsinore has offered a particular form of teaching to the Roma children with a high ratio of absence in

school. This offer has resulted in ongoing establishment of special classes for these children.

On 3 December the Association Romano and others complained to the Supervisory Council for the County of Frederiksborg

that the municipality of Ellsinore established these classes. The association found the special offer illegal and that the

selection of pupils for these classes constituted illegal discrimination of Roma children. July 3 2003, the Supervisory

Council requested the Ministry of Education to comment on the special classes. Comments were also requested from the

municipality of Ellsinore and the complainant. Due to an amendment of the Act on Municipalities on 1 January 2004,

municipal supervision was transferred to the State County of Copenhagen, which then took over the case.

The State County of Copenhagen concludes on 13 September 2004, in accordance with the statement of the Ministry of

Education, that this special form of teaching does not constitute special education, as these special classes are established

due to the high absenteeism of the pupils and not in any special learning disabilities.

As the establishment of special classes for other purposes than the need for special education is not in accordance with the


Primary Education Act, the State County of Copenhagen concludes that these special classes constituted a violation of the

Primary Education Act.

The State County found that the fact that only Roma children attended the three special classes did not alone justify a case

of racial discrimination, and it was not investigated whether there had been any further illegal matters.

Following the statement of the State County the City Council of Ellsinore decided on 18 October 2004 to request the

Ministry of Education for an exemption in order to continue the present Roma classes until the summer of 2007. 21 out of

23 the city councillors present voted in favour of this decision

Report from the Rockwool Foundation Research Unit: Migrants, work and the welfare state

The report presents the difficulties concerning integration in Denmark of non-Western immigrants on the labour market and

compares to the situation in Germany. Demographic trends, educational factors and the immigrants’ use of the welfare

system in Denmark are analysed in the Report. Subjects like crime and the impact on salaries and employment possibilities

for the population in the host country are also dealt with.

Ethnic groups – crime and prevention

On 14 June 2004, the Danish Crime Prevention Council published a new thorough report on the correlation between crime,

ethnicity, and social conditions. The report assesses the scope of the problem, the causes and practical experience in the

prevention of crime committed by ethnic minorities. The report concludes that the over-representation of ethnic minorities

compared to ethnic Danes who commit crime primarily is due to factors such as poor social and economic conditions rather

than being caused by ethnicity. Taking these social factors into consideration there is, however, still a certain – but

considerably smaller – over-representation of young men of other ethnic origin of about 7 per cent. Some of the

explanations for this over-representative crime rate among ethnic minorities are cultural conflicts, perceived discrimination

and frustrations, which in general affect the situation of ethnic minorities as well as cultural differences in relation to

confessions and selection in the legal system, including the fact that ethnic minorities attract much more attention from the

police and the courts.

The differences spread over age groups with an over-representation among the 15 to 19 years old and to a certain degree

also the 20 to 29 years old compared to the ethnic Danes of the same age.

The report demonstrates certain differences in crimes committed by immigrants and their descendants. The crime rate is

markedly higher among descendants than immigrants. The only immediate explanation to this difference seems to be the

conflict of norms and culture, which affects the descendants (the second generation) to a much higher degree than the

original immigrants (the first generation). This is due to the different situation of the two groups: the immigrants typically

arrive to a new country in the middle of their lives and will typically maintain the norms that they have brought with them,

thus avoiding the cultural conflict. At the same time the immigrants confront language barriers and possible “imported”

social problems and/or traumatic experiences. The higher crime rate of the descendants could be due to a wish to compare

themselves to the Danes, experience the frustration of being different and finding it more difficult than the Danes to reach

the same goals, e.g. in the labour market, difficulties in adjusting, cultural conflicts and maybe also discrimination. It

appears as an “injustice” to have another ethnic background, whereas the first generation immigrants may even have felt

privileged because they are aware of the necessity of the immigration and typically feel an improvement in their lives

The report is available on http://www.crimprev.dk


The German minority in North Schleswig

The Report No. 1434 from 2003 of the Structural Reform Commission states that the access to establish special committees

pursuant to Article 17 (4) of the Act on Municipalities enables a minority to secure a continued political basis in those cases

where the minority will not be represented after the changes of the present municipal and county limits.

The Agreement on Structural Reform from June 2004 proposes that Region South Denmark will have special assignments

concerning the German minority. According to the Agreement, the special historically determined status calls for special

measures. In the discussion with the German minority the Government will as a starting point present a model according to

which it is made compulsory for the future Region South Denmark and for future municipalities in North Schleswig to

establish a special committee to handle the interests of the German minority similar to Article 17 (4) of the Act on

Municipalities. According to the Agreement on Structural Reform the present economic subsidies which support the cultural

and social activities of the German minority will continue

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:

Bill amending the Aliens Act and the Integration Act

Please refer to the chapter on the Right to Respect for Family and Private Life, Home, and Correspondence

.

Title:

Bill amending the Aliens Act

Background:

The bill is to adjust and liberalize the conditions for awarding visa, as the tightening of the rules for family reunification has

created an increased need for cross-border visits. At the same time the Government wants to fight illegal immigration and

abuse of visa, and to stress that the purpose of a stay requiring visa is a short stay in the country. The bill is also to motivate

rejected asylum seekers to leave the country.

The main elements of the bill are:

- Firstly, the rules are changed to allow as a condition for visa that the resident reference provides a security of DKK 50,000

pursuant to Article 4 (2) of the Aliens Act. The amount is to be paid if the foreigner awarded the visa requests asylum.

- Secondly, it is proposed that in principle a violation of the conditions for visa will result in a five year visa ban (Article 4

c)

- A certain relaxation of visa practice is proposed in cases where a foreigner has been rejected family reunification due to

the aggregate ties, housing or the 24 year age limit conditions not having been met.


- As a rule the State carries the cost for the return journey after the refusal of asylum pursuant to the proposed rule in Article

43 (2, 3. point) in the Aliens Act, provided that he/she has contributed to informing the case and leaves the country

voluntarily after refusal.

- It is proposed to establish special access to expulsion if the foreigner is sentenced for illegal coercion in entering into

marriage, for child abductions and human trafficking.

- In Article 42 b (2) the bill contains rules for severing any cash subsidies for asylum seekers from the so-called “list

countries” the applications of whom are treated according to the “urgent obviously unfounded” procedure and provided

there are no general expulsion obstacles in relation to the native country of the applicant.

Human rights:

The bill relates to foreigners’ access to obtain visa but also affects the right to obtain asylum.

Assessment by the Institute:

The real objective of the liberalization is to improve access to family reunification which has previously been refused, for a

certain period although the normal conditions are not fulfilled. In this way violations of Article 8 of the ECHR on the right

to respect for family life can be avoided. The Institute notes that this arrangement must be applied respecting Article 14 of

the ECHR, so that certain nationalities are not refused visa to a larger extent than others. It is regrettable that the bill does

not address this problem. Improved access to family reunification is thus proposed. From the point of view of protection it is

debatable whether this should not also apply to access to asylum, as persons who are subjected to gross violations in their

home country typically have a greater need for residence permit in Denmark than foreign married couples. Concerning the

proposed security of DKK 50,000 from the resident reference, which have to be paid if a foreigner who has been awarded a

visa requests asylum, the Institute regards it as an open question whether this arrangement, which in reality contains a

criminal element for the reference in case the foreigner requests asylum, will comply with the relevant conventions, as the

right to seek asylum is a basic human right pursuant to Article 33 of the Refugee Convention. The demand also tends to be

socially discriminatory and random as many foreigners (and Danes probably) will not be able to provide security for DKK

50,000 Besides, the Institute would have preferred that also foreigners notoriously in need of protection were offered a

possibility to obtain visa. In the assessment of the Institute the severance of cash subsidies for asylum seekers in the “urgent

obviously unfounded” procedure is based on an untenable foundation. This also applies to the proposal that this group of

persons will not be included in the new arrangement concerning State coverage of the cost for the return journey after

refusal of asylum.

References:

Act No. 929 of 9 June 2004.

Entry into force: 1 October 2004.

Title:

Draft bill amending the Act on Hospital Services and the Act on Public Health Insurance

Please refer to the chapter on prohibition of discrimination.

Title:

Draft bill amending the Aliens Act (Accession to the Eurodac Regulation and the Dublin Regulation) Please refer to

the chapter on Right to Respect for Family and Private Life, Home, and Correspondence


2. Danish court decisions

Eastern and Western High Courts:

No judgements concerning the rights of refugees have been published during the period under review.

Supreme Court:

No judgements concerning the rights of refugees have been handed down during the period under review.

3. Opinions of the Parliamentary Ombudsman

No opinions concerning the rights of refugees have been published with Denmark as a party to the case during the period

under review.

4. Judgements of the European Court of Human Rights

No judgements or decisions concerning the rights of refugees have been published with Denmark as a party to the case

during the period under review.

5. Opinions of and concrete cases from the Committees

6. Government initiatives

Government action plan for deportation of asylum seekers

The action plan was presented by a press statement on 1 March 2004 and can be found on: http://www.inm.dk. The Plan

focuses especially on deportation to Afghanistan, Iraq and the province of Kosovo in Serbia and Montenegro.

Guidelines concerning payments, pursuant to the Integration Act

The Ministry for Refugees, Immigration and Integration published guidelines in June 2002 describing the rules of the

Integration Act concerning payments and assistance to foreigners in special cases comprised by the Act.

SELECTED LITERATURE ON HUMAN RIGHTS FROM THE BEGINNING OF OCTOBER 2003 UNTIL END

OF OCTOBER 2004, IN ENGLISH AND GERMAN

Broberg, Morten; Holst-Christensen, Nina

Free Movement in the European Union: Cases, Commentaries and Questions.

Copenhagen: Jurist- og Økonomforbundets Forlag, 2004 (937 p.)

Feller, Erika; Türk, Volker; Nicholson, Frances (eds.)

Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection Cambridge:

Cambridge University Press, 2003 (717 p.)

Dutertre, Gilles

Key case-law extracts – European Court of Human Rights Strasbourg: Council of Europe Publishing,

2003 (427 sp)


Campbell, Tom; Goldsworthy, Jeffrey; Stone, Adrienne

Protecting Human Rights: Instruments and Institutions Oxford: Oxford University Press, 2003 (337 sp)

Mares, Radu (ed.)

Business and Human Rights: A Compilation of Documents Leiden: Brill Academic Publishers, 2004 (654

p.)

Sowell, Thomas

Affirmative Action around the World Yale: Yale University Press, New Haven and London, 2004 (239 p.)

Karaca, Kayhan

Guarding the watchdog – the Council of Europe and the media Strasbourg: Council of Europe Publishing (72 p.)

Hood, Roger; Badinter, Robert (eds.)

The Death Penalty Beyond abolition Strasbourg: Council of Europe Publishing (244 p.)

Institut for Menneskerettigheder Kjaerum, Morten; Johannesen, Tina; Feldt Nissen, Adam (eds.)

Discrimination and Prevention of Torture Copenhagen: Institute for Human Rights, 2003

Adhikari, Bipin

Building capacity of national human rights institutions: The case of Nepal Kathmandu: Right to Education Foundation,

2004 (384 p.)

Council of Europe

The fight against terrorism: Council of Europe standards Strasbourg: Council of Europe, 2004 (417 p.)

The European Union

Freedom, security and justice for all: justice and home affairs in the European Union Luxembourg: European Union, 2004

Heinz, Wolfgang; Arend, Jan-Michael

Internationale Terrorismusbekämpfung und Menschenrechte : Entwicklungen 2003/2004 Berlin : Deutsches Institut für

Menschenrechte, 2004 (112 p.)

Ignatieff, Michael

The lesser evil: political ethics in an age of terror Edinburgh: Edinburgh University Press, 2004 (212

p.)

Ishay, Micheline R.

The history of human rights: from ancient times to the globalization era, Berkeley: University of California Press, 2004

(450 p.)

Keppler, Elise

Bringing justice: the Special Court for Sierra Leone: accomplishments, shortcomings, and needed support New York, NY:

Human Rights Watch, 2004 (55 p.)


Knop, Karen (ed.)

Gender and human rights Oxford: Oxford University Press, 2004 (256 p.)

Macedo, Stephen

Universal jurisdiction: national courts and the prosecution of serious crimes under international law Philadelphia: University

of Pennsylvania Press, 2004 (383 p.)

Mokhtar, Aly

Human rights obligations v. derogations: Article 15 of the European Convention on Human Rights The international journal

of human rights. vol. 8, No. 1, 2004

Mowbray, Alastair

Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control

system of the Convention International human rights reports. Vol. 11, No. 3, 2004

Orford, Anne

Reading humanitarian intervention: human rights and the use of force in international law Cambridge: Cambridge

University Press, 2004 (243 p.)

Scheinin, Martin (ed.); Toivanen, Reetta, (ed. )

Rethinking non-discrimination and minority rights Turku: Institute for human rights, Åbo Academy University, 2004 (254

p.)

Thornberry, Patrick Estebanez; Maria Amor Martin

Minority rights in Europe: a review of the work and standards of the Council of Europe Strasbourg: Council of Europe,

2004

United Nations; Human Rights Committee

Rules of procedure of the Human Rights Committee Geneva: United Nations (24 p.)

United Nations High Commissioner for Human Rights

Recent reporting history under the principal international human rights instruments: international human rights treaty bodies

Geneva: United Nations High Commissioner for Human Rights, 2004 (198 p.)

Welchman, Lynn (ed.)

Women’s rights and Islamic family law: perspectives on reform London: Zed Books, 2004 (300 p.)

HUMAN RIGHTS ON THE INTERNET, DANISH INSTITUTE FOR HUMAN RIGHTS

The Danish Institute for Human Rights

The website of the Danish Institute for Human Rights has both a Danish and an English version. The website informs about


the various activities of the Institute, its departments, publications, conferences, etc. It also has links to other relevant

websites. http://www.humanrights.dk/

Human Rights in Europe

This website (only in Danish) is produced by the Danish Institute for Human Rights and is intended to inform about human

rights in Europe. The website gives information about the European Court of Human Rights in Strasbourg and offers easily

accessible introductions to themes such as freedom of religion, rights of the disabled, freedom of expression, rights of the

child, racism, protection of personal data, etc. It is also possible to search for cases at the European Court of Human Rights

with Denmark as a party. Several major newspapers and the Danish Broadcasting Corporation (Danmarks Radio)

contribute news to the site. http://www.menneskeret.dk

National Human Rights Institutions (NHRI)

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 is developed in cooperation between the Danish Institute for Human Rights and

the Office of the United Nations High Commissioner for Human Rights in Geneva. http://www.nhri.net/

Human Rights & Business Project

On this website, the Human Rights & Business Project informs about companies’ responsibilities for human rights.

Furthermore you will find indicators that companies can use to determine to what extent they comply with human rights

standards as stipulated in 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). http://www.humanrightsbusiness.org

Diversity in the work place

The MIA Prize is intended for companies who take the lead to actively promote diversity and consistently prevent

discrimination in the work place. The Prize was set up by the Danish Institute for Human Rights in 2003. The first MIA

Prize was awarded on 30 March 2004 and again in 2005. The Prize is funded by the EU, which has adopted two directives

to ensure equal treatment – irrespective of ethnic origin, religion, disability, age and sexual orientation. The website offers

more information about the MIA Prize, and the reader can test his or her knowledge of equal treatment and browse for

advice on diversity management. http://www.miapris.dk/

SOME INTERNATIONAL NON-GOVERNMENTAL ORGANIZATIONS

Amnesty International

Amnesty International is an independent, global human rights organizations working to make the Universal Declaration of

Human Rights a reality for everyone. http://www.amnesty.dk/

Digital Rights

Digital Rights protect the rights of citizens on the Internet and in other digital media. The focus is mainly on the right of the

citizen not to be unduly registered and surveyed and the right of free expression and to obtain information via digital media.

http://www.digitalrights.dk/

Electronic Privacy Information Center (EPIC)

EPIC is a research centre focussing on the right to privacy and infringement of civil rights.

http://www.epic.org/


The European Network against Racism (ENAR)

ENAR, is a network of European NGO’s fighting racism in the EU member states. On their website you can read the latest

news about EU legislation against racism and discrimination. http://www.enar-eu.org/

International Commission of Jurists (ICJ)

ICJ works for the implementation and promotion of human rights and international rule of law.

http://www.icj.org/

Privacy International

Privacy International works to protect privacy and takes a critic stand on measures to survey and register citizens which

authorities undertake when fighting terrorism, IT crime and other crime. http://www.privacyinternational.org/

SUPRA- AND INTERNATIONAL ORGANIZATIONS

The United Nations (UN)

The UN website contains large amounts of information both on member states, documents, activities, conferences etc. One

way of keeping updated is via http://www.un.org/News/, or you can click on:

http://www.un.org/Depts/dhl/resguide/spechr.htm, if you want to know more about the structure and correlation between

conventions and committees. http://www.un.org

The UN High Commissioner for Human Rights (UNHCHR)

The website of the UN High Commissioner for Human Rights gives you access to information about the UN Universal

Declaration of Human Rights, about conventions, conferences, committee decisions, general recommendations to

conventions, meetings already held and planned, as well as a number of other issues relating to human rights.

http://www.ohchr.org/english/

To read about the UN Human Rights Committee please refer to: http://www.ohchr.org/english/bodies/chr/index.htm

UN Treaty Bodies

At the UN High Commissioner for Human Rights website you will find information about the UN Treaty Bodies for each

UN Convention, including general comments, periodic report, conclusions as well as individual decisions from the

Committees which receive individual complaints (HRC, CERD, CAT and CEDAW):

The Human Rights Committee (HRC):

http://www.ohchr.org/english/bodies/hrc/index.htm

The Committee on Economic, Social and Cultural Rights (CESCR):

http://www.ohchr.org/english/bodies/cescr/index.htm

The Committee on the Abolition of Racial Discrimination (CERD):

http://www.ohchr.org/english/bodies/cerd/index.htm

The Committee against Torture (CAT):


http://www.ohchr.org/english/bodies/cat/index.htm

The Committee on the Rights of the Child (CRC):

http://www.ohchr.org/english/bodies/crc/index.htm

The Committee on the Elimination of Discrimination against Women (CEDAW):

http://www.un.org/womenwatch/daw/cedaw/

The Committee on Migrant Workers (CMW):

http://www.ohchr.org/english/bodies/cmw/index.htm

The UN High Commissioner for Refugees (UNHCR)

Office of the United Nations High Commissioner for Refugees: http://www.unhcr.ch/cgibin/texis/vtx/home

International Labour Organization (ILO)

The ILOlex database contains information about workers’ rights, the ILO Conventions, the Committee on Freedom of

Association, the Committee of Experts on the Application of Conventions and Recommendations, etc. http://www.ilo.org/

og http://www.ilo.org/ilolex/

The European Union (EU)

The European Union website gives access to official EU documents, information about EU institutions, sources of

information, activities etc. http://www.europa.eu.int for the EU Charter on Fundamental Rights and the Constitution Treaty

please refer to: http://europa.eu.int/constitution/ and http://europa.eu.int/futurum/index_da.htm and for EU activities,

human rights: http://europa.eu.int/pol/rights/index_da.htm

The Court of Justice of the European Communities

The EC Court and the Court of First Instance. http://curia.eu.int/da/plan/index.htm

The European Union Network of fundamental rights experts

The Network of experts of the EU Charter and of fundamental rights.

http://europa.eu.int/comm/justice_home/cfr_cdf/index_en.htm

The European Monitoring Center on Racism and Xenophobia (EUMC)

The primary objective of the European Monitoring Centre on Racism and xenophobia, EUMC’s, is to provide the member

states and the European Community with objective, reliable and comparable information on a European scale concerning

racism, xenophobia and anti-Semitism. http://eumc.eu.int/eumc/index.php

The Council of Europe

The website of the Council of Europe contains information about the structure of the Council, activities and official

documents, including information about the European Commission against Racism and Intolerance, which undertakes

various initiatives against racism, xenophobia, anti-Semitism and intolerance. http://www.coe.int

The European Court of Human Rights

You will find the European Court of Human Right website on http://www.echr.coe.int/. You can search among the


judgements concerning the European Convention on Human Right on: http://www.echr.coe.int/Hudoc.htm

The European Ombudsman

As a citizen or an individual or company/organization with residence/registered office in a member state you can complain

to the Ombudsman about mistakes or negligence including any acts violating the EU Charter on Fundamental Rights,

committed by EU institutions and organs. http://www.euro-ombudsman.eu.int

EUR-Lex

EUR-Lex offers free access to EU law and information about treaties, legislation, case law and legislative acts under

preparation. http://europa.eu.int/eur-lex/da/index.html

PreLex

PreLex is a database containing information about inter-institutional procedures. The database allows you to follow the

main steps in the decision procedure between the Commission and other institutions. Prelex contains almost all proposals

(e.g. for legislative acts under preparation, budgets and commitment to international agreements) as well as all

communications from the Commission http://europa.eu.int/prelex/apcnet.cfm?CL=da

JUDGEMENTS AND DECISIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS

Cases decided:

Pedersen and Pedersen v. Denmark No. 68693/01,

Judgement of 14 October 2004. page 62

Cases declared inadmissible:

Haliti et. al. mov. Denmark No. 14712/03,

declared inadmissible on 19 February 2004 page 41

Hida v. Denmark No. 38025/02, declared inadmissible on 19

February 2004. page 41

Muratovic v. Denmark No. 14923/03, declared inadmissible on 19 February 2004. page 42

Muratovic v. Denmark No. 14513/03, declared inadmissible on 19 February 2004. page 42

Petersen (Troels) v. Denmark No. 6315/02, declared inadmissible on 13 May 2004. page 64

Senator Lines v. all EU member states No. 56672/00, declared inadmissible on 10 March 2004. page 64

Poulsen v. Denmark No. 14469/03, removed from the list of judgements on 6 May 2004. page 96


Cases settled:

Petersen (Lizzie) v. Denmark No.70210/01, admitted on 18 September 2003. page 65

Judgements are available at: http://www.echr.coe.int/Hudoc.htm.

SPECIFIC CASES FROM THE COMMITTEES

Committee on the Elimination of Racial Discrimination

Cases decided:

M. O v. Denmark No. 209/2002, decided on 12 November 2003. page 45

V. R v. Denmark No. 210/2002, decided on 17 November 2003. page 45

Cases declared inadmissible:

Jensen v. Denmark No. 202/2002, declared inadmissible on 5 May 2004. page 43

R. S v. Denmark No. 225/2003, declared inadmissible on 19 May 2004. page 44

The decisions are available at http://www.ohchr.org/

ABBREVIATIONS

CPT The European Committee for the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment

ECHR

The European Convention for the Protection of Human

Rights and Fundamental Freedoms

ECHR The European Court of Human Rights

ECRI The European Commission against Racism and Intolerance

ECSR The European Committee of Social Rights

EU Charter The Charter of Fundamental Rights of the European Union

(2000/C364/01)

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

Kinds 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 Human Rights

V Western High Court

Ø Eastern High Court

Index

Access to documents / Inspect documents, right to, pp. 56, 114

Aliens, pp. 19-21, 51, 79-83, 91, 93-96, 98-101, 103, 106, 126, 131, 139-140, 143, 157, 160, 171, 180-183, 201, 207, 211-

212, 214

Anonymous witnesses, p. 184

Arranged marriages, p. 99

Association and assembly, freedom of, pp. 119-121

Asylum seekers, pp. 171, 180-181, 183

Burden of proof, shared, p. 128

Cash benefits, p. 139

Child pornography, pp. 30, 174, 176

Committee against Torture (CAT), pp. 17, 29, 194

Committee on Economic, Social and Cultural Rights (CESCR), pp. 28, 194

Committee on the Elimination of Discrimination against Women (CEDAW), pp. 17, 29, 194

Committee on the Elimination of Racial Discrimination (CERD), pp. 28, 194

Committee on the Rights of the Child (CRC), pp. 30, 194

Confiscation, pp. 76, 78

Custody, pp. 110-111

Death penalty, p. 35

Deportation of asylum seekers, action plan for, p. 183

Deprivation of liberty, pp. 10, 35, 48, 50-53, 88, 153-154, 156, 213

Dignity, p. 154

Differential treatment based on sex, pp. 127, 145, 200


Differential treatment based on racial or ethnic origin, pp. 13, 16, 24, 25, 200

Discrimination against women, pp. 17, 29, 143, 194, 215

Discrimination, racial discrimination, s. 7-9, 11-12, 16, 19-21, 25, 28-29, 31, 82, 101-103, 105-106, 114, 125, 128-129, 131-

132, 135, 139-143, 145-147, 163, 167, 175, 177-178, 181-182, 192-194, 200, 204, 210, 215

Door openers, use of special, pp. 52-53, 165, 213

Economic, social and cultural rights, pp. 7, 14, 17, 28, 32, 138-140, 194, 215

Effective remedy, right to, pp. 122-123

The European Advisory Committee on the Framework Convention for the Protection of National Minorities, s. 33

The European Commission against Racism and Intolerance, pp. 33, 213

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, p. 32, 43, 215

Equal treatment, ethnic, pp. 8, 13, 15-16, 25, 128, 131-132, 140, 200

Expert Committee of the European Charter for Regional or Minority Languages p.. 33

Expulsion, pp. 41-42, 44-46, 50, 59, 94-96, 181-182, 212

Expression and information, freedom of, pp. 108, 117, 129

The Faeroe Islands, p. 123

Fair trial, right to a, pp. 55-56, 66, 86, 156

Forced marriage, pp. 19, 101-102

Gil-Robles, Alvaro – Human Rights Commissioner for the Council of Europe, pp. 19, 99, 135, 160

Human Rights Committee (HRC), pp. 27, 194

Identity, pp. 61, 186

Immigrants, pp. 81, 93-94, 101-102, 112, 129, 177-178, 182-183, 193, 197

Incorporation (implementation) of Human Rights Conventions into Danish law, Report on, p. 21

Indirect differential treatment/discrimination, p. 162

Integration, pp. 9, 11, 19, 20, 81-82, 93-94, 96-97, 101, 106, 133, 141, 143, 146, 157, 159-160,

167, 171, 177, 180, 182-183, 193, 197, 203, 211

Integrity, personal, pp. 108, 200

Interpreters, assistance of, p. 126

IT crime, pp. 74, 193

Liberty, right to personal, pp. 50, 52, 54, 88

Life, right to, pp. 35-36, 82

MIA project, diversity and equal treatment at workplaces pp. 135, 191

National Minorities, s. 33

Ne bis in idem (no one should be prosecuted or tried twice for the same criminal offence), pp. 77, 86-87

Patients’ Boards of complaints, pp. 201-202

Personal data, disclosure of, pp. 73-74, 89-90, 199

Private and family life, right to respect for, p. 71

Prohibition of reprisals, pp. 129, 131

Propaganda activities, p. 111

Property, protection of, s. 136-137

Proportionality (a fair balance between the cause of the interference with the rights and the basis and purpose of the

interference), pp. 10, 52-53, 61, 74-75, 78, 84-86, 90, 105, 113, 154, 156, 165, 172

Protection of personal data, p. 190

Psychiatric patients, pp. 12, 53

Punishment, p. 32, 43, 215

Racism, pp. 9, 33, 112, 132-133, 190, 192, 195-196, 215

Racist viewpoints, pp. 111-112

Religion, freedom of, pp. 104-107, 147, 190

Residence permit, pp. 10, 20, 45, 81-83, 93-94, 96, 99-100, 181, 203, 211

Restraint in psychiatric treatment, immobilization, pp. 12, 52-53, 88, 213

Roma children, special classes for, p. 176

Self-determination, the individual’s right of, pp. 52-53, 83, 106, 141, 165


Sexual abuse of children, p. 175

Slavery and forced labour, prohibition of, pp. 48-49

Spouse reunification, requirement for aggregate ties, pp. 98, 101

Thule case, the, p. 170

Torture and inhuman or degrading treatment or punishment, prohibition of, pp. 37, 40, 129, 138

24 year age requirement, pp. 19, 99, 101-103, 180

28 year age requirement, pp. 99-103

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