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VII. Denmark

Section 8 (5) of the Danish Penal Code¹⁸⁶ provides for universal jurisdiction over crimes that Denmark has an obligation to prosecute under an international convention. This includes torture under the Convention against Torture¹⁸⁷ and grave breaches of the Geneva Conventions.¹⁸⁸  In addition, section 8 (6) provides Danish courts with universal jurisdiction over any crime with a sentence of more than one year’s imprisonment, where the crime is also a crime in the territorial state and the suspect cannot be extradited to the territorial state.¹⁸⁹  Due to a lack of implementing legislation, all complaints are investigated, prosecuted and eventually punished on the basis of crimes as defined in the Danish Penal Code. Several complaints have been investigated on this basis since 2001, with three cases leading to a prosecution. One, involving a Ugandan national, led to a conviction for armed robbery and abduction in 2004.¹⁹⁰ Other prosecutions did not lead to trial because of the death or escape of the accused. All other investigations have so far been discontinued for reasons further outlined below.

A. Jurisdictional Challenges

1.   Presence

Although not required by section 8 (5), the suspect has to be voluntarily present for Danish authorities to exercise jurisdiction over the crimes that international treaty law commits them to prosecute, and presence is a prerequisite for a police investigation.¹⁹¹ Should the suspect leave Denmark during an investigation, the investigation will be discontinued. Extradition can only be requested where a suspect has already been charged and has subsequently fled Denmark.¹⁹² To avoid a suspect’s departure, the investigative authorities have to apply for a court order for preliminary detention. Such an order will only be granted where there is substantial reason to believe that a crime was committed by the suspect and where he or she seeks to leave Denmark, tamper with evidence, or commit a crime.¹⁹³ Due to the substantial level of evidence required to implicate a suspect, it has only been possible for the investigative authorities to obtain the order in two cases. The first case involved the Ugandan national who was convicted, and the second a former Iraqi general who escaped before the order could be enforced.¹⁹⁴

The strict adherence to the presence requirement stopped the investigation of a recent complaint filed by a practitioner of Falungong against a Chinese prosecutor who attended a conference in Copenhagen in August 2005. The investigators had five days to establish a link between the crimes in question and the alleged perpetrator.¹⁹⁵ However, it was not possible to collect sufficient evidence to successfully apply to the courts for an arrest warrant within this timeframe. The Chinese prosecutor left Denmark once the conference was over, and the investigation had to be discontinued.

2.   Immunities

Danish authorities can exercise universal jurisdiction as provided for in article 8 (5) if such an exercise is in accordance with international law.¹⁹⁶ Accordingly, immunities as recognized by international law will prevent an investigation by Danish authorities, as illustrated in the case against the former ambassador of Israel to Denmark, Carmi Gillon, where the Ministry of Foreign Affairs and the Ministry of Justice in July 2001 decided not to open an investigation against him.¹⁹⁷

Three cases involving international crimes could not be investigated due to amnesties which have been enacted in the country where the crime had been committed.¹⁹⁸ A list of criteria is applied, as a matter of policy, to each amnesty in order to determine whether it will be a bar to prosecution in Denmark. Thus far the Special International Crimes Office (SICO)has never disqualified an amnesty, as the amnesties in question have been general, referring not only to regime officials, but to both parties of the conflict.¹⁹⁹  It appears that amnesties are respected, even if they apply to crimes such as crimes against humanity, torture or war crimes.  It is unclear why Danish authorities regards themselves as bound by amnesties issued in the territorial state.

3.   Limitation

Because Denmark has not legislated international crimes directly into domestic law and prosecutes the domestic law equivalents of international crimes, statutes of limitation apply to the prosecutions. This has stopped the investigation of three complaints involving allegations of torture, as this is classified as a crime against the person and is therefore subject to a statute of limitation of ten years.²⁰⁰

4.   Subsidiarity

The issue of subsidiarity is not regulated under Danish law, and practitioners indicated that it has not arisen in any case so far.  It would be dealt with on a case by case basis, taking into account extradition requests and whether the territorial state would apply the death penalty.  In the case of the Ugandan national who escaped to Denmark where he was convicted for armed robbery and abduction in 2004, three Ugandan nationals were prosecuted and convicted by a Ugandan court for being involved in the same crimes.  While Uganda did not ask for the escaped accused’s extradition, authorities indicated that they would have only considered extradition if Uganda could have ensured that the death penalty would not be applied.²⁰¹ 

B. Practical Arrangements for the Exercise of Universal Jurisdiction in Denmark

1.   Special departments in charge of the investigation and prosecution of international crimes

The Special International Crimes Office (SICO) was established in 2002 and is in charge of the investigation and prosecution of serious crimes²⁰² committed abroad by persons present in Denmark.  SICO currently has a staff of seventeen: six prosecutors, nine investigators and two translators. The investigators and prosecutors work in teams, divided by geographical region.  The composition of prosecutors and investigators in the same unit has proven advantageous as both are able to profit from one another’s expertise in the complex legal and investigative aspects of the investigation of international crimes.  The office’s focus is on serious crimes committed abroad, covering anything from murder and rape to genocide.  Approximately 20 percent of their work deals exclusively with international crimes.²⁰³  As one of three national police units, its budget is part of the overall police budget and is determined by the Ministry of Justice. According to the officials interviewed, there is neither a lack of financial resources nor of personnel available to SICO.²⁰⁴

2.   Notification

SICO receives about 60 percent of all cases from the immigration authorities. All asylum seekers are screened and interviewed three times in order to enable immigration authorities to verify their stories.  SICO has a special contact person within the immigration authority who screens all cases before referring them to the unit.²⁰⁵  The majority of cases referred to SICO by immigration authorities are determined to lack sufficient credibility to warrant a prosecution.²⁰⁶  This is established by contacting the country in question or researching background information on the alleged victim.

The Danish immigration authorities and the Danish Red Cross work in conjunction to distribute pamphlets among asylum seekers explaining to them in six languages other than Danish (Albanian, Arabic, Dari, French, English and Bosnian-Croatian-Serbian) where and with whom they can file a complaint. Together with a form on SICO’s website,²⁰⁷ it provides victims and witnesses with the opportunity to directly address the relevant authorities in charge of such complaints. Out of sixty-three complaints received before May 31, 2004, forty-four cases were reported to SICO by the immigration authorities, fifteen by private/anonymous complainants, and four were based on individual initiatives.²⁰⁸  However, according to the 2005 annual report of SICO, the numbers referred to by the immigration authorities were decreasing, while a rising number of complaints have been referred to SICO by victims or witnesses or started on SICO’s own initiative.²⁰⁹

3.   Decision to investigate and prosecute

In cases involving “ordinary crimes,” that is crimes committed in Denmark, the police decide whether to investigate a complaint and the prosecution does not get involved in the investigations. However, in all cases referred to SICO, the prosecution has sole authority in deciding whether to initiate an investigation.  In practice, this decision is taken jointly with the investigators and the investigation itself is then carried out jointly by the police and SICO.  This is one of the advantages of having the expertise of both parties combined in one unit.²¹⁰  The decision is taken according to the “investigation strategy” outlined below.

The prosecution is subject to the authority of the minister of justice, who, pursuant to section 98 (1) of the Administration of Justice Act, superintends their work and pursuant to section 98 (2) may issue guidelines concerning the discharge of their duties.²¹¹  The authority to prosecute under section 8 (4-6) lies with the minister of justice.²¹² Practitioners interviewed by Human Rights Watch indicated that so far the minister of justice did not interfere with their work, and they believed that it was unlikely that this would happen in the future.²¹³  Accordingly, the decision to prosecute international crimes is taken by the director of SICO and is based on the evidence available, which must be sufficient to give rise to a reasonable expectation of a successful conviction.²¹⁴  On two occasions, the prosecutor decided to discontinue proceedings on the basis that the cost of further investigations required would have been disproportionate to the gravity of the alleged crime.  Similarly, investigators would not carry out extensive enquiries abroad for a minor crime.²¹⁵

SICO investigators apply a three-stage test to each complaint that they are requested to investigate.  They ask: (i) Is the crime within the jurisdiction of Denmark?  (ii) Is the suspect present in Denmark? and (iii) Is the limitation period still running? If the answer to all three questions is yes, SICO begins an investigation.

Where the prosecutor decides not to investigate or prosecute, the complainant—provided he or she has some link to the crime in question—can appeal to the director of public prosecution who is the first and last official to whom the complainant can turn.²¹⁶  The director will take into account the reasons given by the prosecutor not to prosecute and the overall handling of the case.  No courts are involved in the appeal as it is a purely administrative procedure.  Appeals have been lodged in two instances with the director of public prosecution upholding the decision of SICO not to prosecute, due to insufficient evidence in one case, and the review decision still pending in the other.²¹⁷

4.   Investigation

a. Investigation in Denmark

When a case is opened, a team of one prosecutor and two investigators searches for evidence through open sources such as NGO reports, newspapers and the Internet.  After this preliminary investigation (lasting a maximum of four weeks) the team calls a meeting with the director and the chief detective of SICO and presents a plan of action highlighting areas where further investigation is necessary.  Where preliminary evidence does not reveal a need for further investigation, a closing letter is sent to the complainant, setting out the reasons why the investigation has been discontinued.²¹⁸

b. Extraterritorial investigation

Before SICO investigates abroad, they ensure that the incident actually occurred and that the territorial state is willing to cooperate.  Other countries with experience of investigation in the territorial states concerned are contacted for advice.  Following this, a team of one prosecutor, two investigators and possibly a translator is sent abroad as quickly as possible.²¹⁹  As a time-saving measure, the number of complaints from this country is taken into account so that the team can attempt to combine the investigation of all complaints in a particular state.²²⁰  The team works closely with local authorities where possible. In the Ugandan case, Danish investigators traveled to foreign states at least three times, on two occasions together with a judge, prosecutor and a defense lawyer when testimonies were taken.²²¹

C. Cooperation

1.   International cooperation

a. EU Network

The network of contact points was utilized to exchange information with practitioners from other countries.²²² The potential of the EU Network in assisting national authorities in the investigation of international crimes is valued highly by Danish practitioners, and exchange of experiences made by other countries is considered crucial for a successful investigation.²²³

b.   Interpol

An initiative by Denmark created the Interpol working group on international crimes in 2004. As a much larger meeting forum, Interpol provides a possibility to meet people from outside Europe. In particular, SICO describes Interpol’s database specializing in international crimes as a fundamentally important development in order to avoid duplicating the efforts of different countries working on international crimes.²²⁴

c. Cooperation with the territorial state

Cooperation with the territorial state is crucial in the event that sufficient evidence to charge a suspect is not available elsewhere.  To date, only one investigation could not be continued due to a non-cooperative territorial state, while in all other relevant cases the territorial state has provided assistance to SICO.²²⁵ In the Ugandan case, the first contact was established via the Danish embassy, which forwarded a rogatory letter to the relevant local authorities—the police and prosecution services. The rogatory letter contained specific crime-related questions regarding the identification of witnesses, and whether the state’s personnel would be present when statements were taken or whether the Danish authorities could take statements themselves.²²⁶  The letter rogatory was executed together with the local authorities and in the case of Uganda was relatively informal, as it did not have to be renewed for every piece of evidence or new witnesses not included in the original letter. However, other countries require a more detailed letter rogatory.²²⁷

D. Role and Rights of Victims and Witnesses

1.   Victims—Compensation and legal representation

A victim is considered a person who is directly affected by a crime. Relatives do not fall under the definition of victim, even if they are indirectly affected by the crime.²²⁸ Victims cannot initiate an investigation or bring a private prosecution under Danish law for serious crimes, but may have the right to state-funded legal representation.²²⁹

In addition to the victim’s right to claim compensation in civil proceedings, the prosecution is obliged to pursue civil claims lodged by the victim if the civil aspects involved are not too complex for a criminal court to decide.²³⁰ Although the victim has no right to participate in the penal aspects of criminal proceedings, a victim can be legally represented as far as compensation is concerned. This representation is covered by legal aid for the trial and possible appeals. In the Uganda trial, victims did not receive any compensation as there were no claims regarding the charges on which the accused was convicted. The other claim-related charges had to be dropped. The victims lived in Uganda and did not travel to Denmark for the trial.²³¹

2.   Witnesses

Although eyewitness testimonies are given much weight, no witnesses have yet traveled to Denmark to testify at trial. Instead, a witness gave testimony in a Ugandan court in the presence of a Danish prosecutor and defense lawyer.²³² This testimony was filmed and later presented in the Danish court. It seems that possibilities such as videotaping a testimony given in court are considered to be preferable for several reasons: a witness can testify in familiar surroundings; the possibility of witnesses claiming asylum in Denmark is avoided; and the costs of travel for a potentially large number of witnesses are also reduced.²³³

Witness protection has not been an issue in Danish investigations. However, where the witnesses feel afraid in the territorial state, Danish authorities will inform local authorities and try to negotiate a protection agreement.²³⁴  Reliance is thus placed on local mechanisms and the national criminal procedure of the territorial state.

E. Fair Investigation and Trial

It is inherent in the Danish system that the police look for both inculpatory and exculpatory evidence. Therefore, so long as no testimonies are taken, investigators do not specifically ask for a defense counsel to be present in the investigation. The defense can ask the investigators to look for evidence required by the defense. The defense can apply to the court to order the investigators to look for further evidence after the investigation has concluded.²³⁵

Although there is no “legal aid” available for criminal cases in Denmark, the defense and all related costs are paid for by public funds. The legal costs are settled before the trial, and it is only in the case of a person’s conviction that he or she might be ordered by the court to pay for those costs.²³⁶