1. Introduction
1. Denmark (conventional long
form: Kingdom of Denmark) is a founding member of the Council of
Europe. The country has 5.7 million inhabitants (2016), 12,3% of
whom are immigrants and descendants of immigrants.
2. Denmark is a constitutional monarchy ruled under the 1953
Constitution which applies also to the Faroe Islands and Greenland.
Queen Margrethe II ascended to the throne on 14 January 1972; she
carries out mainly formal and ceremonial functions.
3. The Faroe Islands (49 126 inhabitants) and Greenland (55 847 inhabitants)
enjoy a high degree of autonomy within the Kingdom. The Home Rule
Acts, adopted originally in 1948 and 1979, introduced extensive self-government
in these two islands. In 2009, the Act on Greenland Self-Government
allowed the expansion and transfer of further competences and responsibilities
from the Danish authorities to the Greenland authorities, who are
now responsible for,
inter alia,
the administration of justice and the establishment of courts of
law, the police, and mineral and oil resources. Public revenues
from mineral and oil resource activities in Greenland accrue to
Greenland. Greenlandic has also become the official language in
Greenland
while International Labour Organization
(ILO) Convention No. 169 concerning Indigenous and Tribal Peoples
in Independent Countries applies in Greenland.
Early general elections
were held in Greenland in November 2014, after the social democratic
government lost its majority due to an embezzlement scandal involving Greenland’s
Prime Minister, Aleqa Hammond.
The current government – elected
in November 2014 – consists of a coalition between Siumut, Atassut
and Demokraatit.
4. Denmark became the first Nordic country to join the European
Union in 1973, whereas the Faroe Islands decided to stay outside
of the European Community. Greenland originally joined the European
Commission as a part of the Kingdom of Denmark but decided to leave
on 2 February 1985 as a result of a consultative referendum in 1982
where 53% voted against membership. For the 1992 Maastricht Treaty,
Denmark was granted four opt-outs, pertaining to defence, justice
and home affairs, and its national currency (not opting for the
euro). The opt-out on citizenship rules was cancelled with the acceptance
of the Amsterdam Treaty that took effect in 1999. Denmark has held
nine referendums on the European Union, including the referendum
in Greenland in 1982 on Greenland's European Union membership.The
most recent one was organised on 3 December 2015, when 53.1% of
voters rejected the opt-in model on Justice and Home Affairs proposed
by the Prime Minister, Mr Rasmussen, which would have enabled Denmark
to join 22 European Union legislative acts,
ensure its continued participation
in Europol, Eurojust and a European system notably for registering flight
passengers while preserving Denmark’s own rules on immigration issues.
During the last European Parliament
elections (September 2014), the Eurosceptic Danish People’s Party
(Dansk Folkeparti) scored 26.60%
and, for the first time, became the
largest party in a nationwide Danish election.
5. Denmark has recently faced its most important migration crisis,
stemming notably from the Syrian and Iraqi conflicts. In 2014, almost
15 000 asylum requests were registered, and there were almost 3 600
requests in October 2015 (more than in the whole of 2011). In 2016,
the number of asylum seekers reaching Denmark was expected to be
10 000.
Early
in September 2015, hundreds of refugees crossed Denmark’s border
at the Rødby ferry terminal and at the land border with Germany.
Border controls were re-established between Sweden and Denmark,
which have been extended until November 2016. In January 2016, Denmark
re-established temporary border controls on the Danish–German border,
which have been extended until November 2016 in accordance with
the Council of the European Union’s decision of 12 May 2016 setting
out a recommendation for temporary internal border control in exceptional
circumstances, putting the overall functioning of the Schengen Area
at risk.
6. This situation prompted the authorities to adopt a number
of restrictive laws to respond to the increasing number of people
seeking asylum in the country (as explained by the authorities)
and to devote one third of the development
aid – which was already cut from 0.87% of gross national income
to 0.71% – to the refugee crisis, a measure deplored by development
associations.
. We should however stress that Denmark
remains one of the five member States belonging to the Development
Assistance Committee (DAC) of the Organisation for Economic Co-operation
and Development (OECD), which has achieved or exceeded the United
Nations’ target of keeping the official development assistance (ODA)
at 0.7% of gross national income in 2014.
7. This periodic review report was drafted in line with
Resolution 2018 (2014) and the explanatory memorandum approved by the Monitoring
Committee on 17 March 2015. It reviews the challenges faced by Denmark
in the field of democracy, the rule of law and human rights, based
on the most recent findings of the monitoring mechanisms of the
main Council of Europe conventions, the findings of the Parliamentary
Assembly and the Council of Europe Commissioner for Human Rights
and, when relevant, the reports prepared by other international
instances and representatives of civil society and non-governmental
organisations (NGOs). The comments
sent by the Danish delegation
to Parliamentary Assembly and the authorities, for which I am grateful,
have also been taken into account in my findings and conclusions.
2. Democracy
2.1. General elections
8. Since the abolition of the
Landsting in 1953, Denmark has had
a unicameral system of parliament (the
Folketinget).
179 deputies are directly elected according to a regional proportional
representation system.
135 seats are allocated on a constituency
basis, which ensures an even distribution across the country, with
a small advantage to sparsely populated areas. Forty supplementary
seats ensure that parties with a possibly more dispersed support
also have a chance of being elected. The Faroe Islands and Greenland
each have two representatives in parliament. The result of this
system is a distribution of seats in the parliament which fairly reflects
the share of the popular votes received by the parties. Parliament
is elected for a four-year term, but the Prime Minister may call
an election at any time. The voting age is 18.
9. Denmark’s political system is that of a multi-party structure
known as “negative parliamentarianism” (i.e. the government does
not need to have a majority in the parliament, but it must not have
a majority against it). Since 1909, no single party has had the
majority in parliament. Denmark has thus a long tradition of minority governments,
based on consensus. At present, 13 political parties are represented
in the Danish Parliament. At the 2015 general elections, one of
the oldest and historically most influential parties, Venstre (centre-right, conservative
liberal) obtained 34 seats in the parliament (out of 179) (19%)
and formed the minority government led by the Prime Minister, Lars
Løkke Rasmussen; the Socialdemokraterne party (centre-left, social
democrats) obtained 47 seat (26.2%) and the Dansk Folkeparti (Danish
People’s Party, right-wing, national conservative) 37 seats (20.7%).
10. The government (Danmarks regeringer) currently
comprises 17 members including the Prime Minister (President of
the Venstre Party), who was appointed on 28 June 2015, replacing
former Social Democrat – and first Danish female – Prime Minister
Helle Thorning-Schmidt.
2.2. Local
democracy
11. In Section 82, the Danish Constitution
gives the “right of the municipalities to manage their own affairs independently
under the supervision of the State”.
A number of administrative powers
are delegated to the five regions and the 98 municipalities (“
kommuner”) that were created as
part of the 2007 Danish Municipal Reform.
12. Denmark ratified the European Charter on Local Self-Government
(ETS No. 122) in 1988, with a territorial reservation on the Faroe
Islands and Greenland. The Congress of Local and Regional Authorities
of the Council of Europe (hereafter “the Congress”) issued its last
report and recommendation on local and regional democracy in Denmark
in October 2013.
The Congress
praised the generally positive (and in some ways exemplary) nature
of local democracy in Denmark, which is reflected by: a “Charter Culture”
as regards the implementation of the principles enshrined in the
Charter; the merging of municipalities on a voluntary basis and
after consultation with local authorities; and the possibility of
inter-municipal co-operation agreements and the active participation
by Danish citizens in the political decision-making processes.
13. A major local government reform was carried out in 2007, aiming
at “ensuring an efficient public sector capable of providing optimum
services without increasing taxation; reinforcing local democracy
[to provide] social services by the authorities closest to the citizens;
and establishing clear responsibilities for each of the relevant
bodies and preventing overlapping”.
As a result, 271 municipalities merged. There
are now 98 municipalities directed by councils elected by direct
suffrage, all (but seven) having more than 20 000 inhabitants. Fourteen
former counties were replaced by five regions, the Municipality
of Copenhagen became one of the now 29 municipalities in the capital
(
Hovedstaden) region and had
to transfer some of its competences to the new region which, according
to several experts, “weakened metropolitan governance”.
14. The Congress, however, issued several recommendations, asking
the Danish authorities to clarify certain competencies not clearly
allotted to local authorities; to allocate appropriate and concomitant
financial resources to all competences exercised by local authorities;
to improve the procedures for financial equalisation among the municipalities
and draw on the Reference Framework on Regional Democracy in structuring
the Danish regions; to revise the State’s supervisory procedures
vis-à-vis local authorities in order to facilitate their access
to the national capital markets; to reinforce the responsibilities
of the capital city; and to revise the responsibilities and improve
the financial autonomy of the regions. The Congress also called
on Denmark to sign and ratify in the near future the Additional
Protocol to the European Charter of Local Self-Government on the
right to participate in local government affairs (CETS No. 207).
15. Following the adoption of Congress Recommendation 350 (2013),
the Danish authorities undertook a series of measures related to
an adjusted allocation of financial resources to local authorities
(and regions) to compensate changes in their responsibilities and
obligations based on annual negotiations between the government
and the association Local Government Denmark, agreeing on expenditure
levels and the improvement of procedures for financial equalisation
among the municipalities, in particular to the benefit of peripheral
and rural municipalities. In addition, the State’s supervisory procedures
vis-à-vis local authorities were revised in order to facilitate
their access to the national capital markets to raise loans, and
the responsibility of the capital city Copenhagen was reinforced;
the responsibilities of the regions were revised and their financial
autonomy was improved. The 2007 municipal reform was evaluated in
2012-2013, which resulted in a political agreement in June 2013
allowing minor changes.
16. Concerning the financial autonomy of the regions, the authorities
indicated that regions are mainly financed through subsidies from
the State and activity-based co-financing from the municipalities.
Thus it had been deemed unnecessary to provide the regions with
the right to levy taxes due to the character of the tasks of the
regions.
17. The Danish authorities also explained that, at this stage,
no political decision had been taken with respect to the signature
and ratification of the Additional Protocol to the European Charter
of Local Self-Government on the right to participate in local government
affairs: the Danish Ministry of Social Affairs and the Interior
is currently evaluating the legal impediments, including at constitutional
level, which might preclude signing and ratifying the additional
protocol.
3. Rule
of law
3.1. Fight
against corruption and money laundering
18. Denmark ratified the Criminal
Law Convention on Corruption (ETS No. 173) in 2000 and its Additional Protocol
(ETS No. 191) in 2005. It signed, but did not ratify, the Civil
Law Convention on Corruption (ETS No. 174) in 1999. Denmark has
excellent scores in the Corruption Perception Index published yearly
by Transparency International, ranking first for the fourth year
in a row, in other words with the lowest perception of corruption.
19. Concerning its third evaluation round (transparency of party
funding), the Group of States against Corruption (GRECO) regretted
that 10 of the 14 recommendations remained unfulfilled. While commending
the authorities for the preparation and publication of the “Report
on openness concerning financial support to political parties” (yet
to be implemented), it noted the lack of progress in the position
taken by the authorities with regard to small facilitation payments
– as a form of “undue advantage” – offered to foreign public officials (and
officials of international assemblies and courts). Such payments
may, in undefined “exceptional circumstances”, fall outside the
scope of the Criminal Code and thus escape punishment.
In its
most recent annual report, GRECO noted that the government-appointed
Committee of Experts on the Transparency of Party Funding (tasked
with reviewing the rules on party funding and drawing up models
for possible future regulation of public and private funding of
political parties) had finalised its report.
The Committee of Experts considered
to what extent GRECO’s recommendations should lead to amendments
to the Danish rules on party funding and on political parties’ accounts.
In March 2015, the Committee of Experts published a report on openness
of financial support to political parties
which contained a number of recommendations concerning
increased transparency with respect to private and public financial
support to political parties and accounting obligations for parties
and candidates. It also proposed different models on how a future
regulation of the area could be structured. On the basis of that
report, the (then) Danish Government conducted in April and May
2015 introductory political consultations with all parties represented
in the Danish Parliament. Following the general elections on 18
June 2015, the government changed. The new government is currently considering
how to follow up on the Committee of Experts’ report.
We
thus expect the authorities to take due consideration of GRECO’s
recommendations and make the expected changes in the legislation
or in the Danish rules on party funding.
20. GRECO also published, in 2016, a compliance report with respect
to the fourth evaluation round (corruption prevention in respect
of members of parliament, judges, and prosecutors), which concluded
that Denmark has implemented satisfactorily only one of the six
recommendations contained in the fourth round evaluation report
(four have been partly implemented and one has not been implemented).
I will outline the unresolved recommendations in the paragraphs
below. GRECO welcomed consideration given by the Presidium of the
Danish Parliament to the GRECO recommendations, and the letter of
the outgoing Speaker sent to new MPs after the elections, on the
ethical principles by which all MPs should abide. On the positive side,
registration of occupations and financial interests by members of
parliament has been made compulsory, and the list of members that
do not comply with this requirement will be published on the parliament’s
website. This “naming and shaming” sanction appears pertinent, given
that the list published on the parliament’s website is subject to
a high degree of transparency and that – as a result – the political
consequences may be significant for MPs who violate these rules.
The Venstre and the Social Democratic Party take the view that the
current regulations are sufficient and are concerned that the new
regulation would infringe upon the privacy of small donors and thereby
hinder participation in the democratic process.
21. Regarding the other measures recommended, GRECO expects further
progress as regards awareness and more concrete guidance on ethical
issues, more transparency on possible ad hoc conflicts of interest
that may arise for members of parliament in connection with matters
under consideration by parliament and additional arrangements for
supervision and enforcement of rules on integrity. GRECO regrets
moreover that the Presidium has so far not given further consideration
to the possibility of drafting a code of conduct for parliamentarians
(along the lines of the ethical principles mentioned above) and
not seen fit to recommend any changes to the categories of information
to be recorded by members of parliament and their relatives, and encourages
it to reconsider its position.
22. With respect to the prevention of corruption in the judiciary,
GRECO welcomes the ethical principles adopted by the Association
of Danish Judges after a broad consultation with all judges, and
their online publication. It expects, however, this text to be completed
by practical examples to fully comply with the GRECO recommendation,
drawing inspiration from the 2007 code of conduct in the public
sector and the guidelines on good conduct and ethics in the prosecution
service, produced by the Director of Public Prosecution, and targeted
training on the ethical guidelines.
I was also informed of initiatives
undertaken by the Danish Court Administration, the Danish Courts
and the Academy of Danish Courts (
Domstolsakademiet) to
raise awareness and promote the practical use of the ethical principles
adopted by the Association of Danish Judges, which I believe will
contribute to raising awareness about the fight against corruption
in the judiciary.
23. In the area of money laundering, Denmark signed, in 2012,
the Council of Europe Convention on Laundering, Search, Seizure
and Confiscation of the Proceeds from Crime and on the Financing
of Terrorism (revised) (CETS No. 198) but has not ratified it. Denmark
is thus not a member of the Committee of Experts on the Evaluation
of Anti-Money Laundering Measures and the Financing of Terrorism
(MONEYVAL).
3.2. Measures
taken in the context of counterterrorism
24. The fight against terrorism
and threats to national security has become a topical issue in Denmark,
as in many Council of Europe member States, especially since the
publication of the cartoons of Prophet Mohammed by the Danish newspaper
Jyllands-Posten in 2005. On 14-15
February 2015, Copenhagen was subjected to two terrorist attacks.
On
3 November 2016, Denmark ratified the Additional Protocol to the Council
of Europe Convention on the Prevention of Terrorism (
CETS
No. 217). However, counterterrorism measures adopted since then
have given rise to some questions in relation to the difficult balance
that needs to be achieved between guaranteeing public order and
security and upholding individual liberties. Amnesty International
in particular has looked into the matter.
25. Since 2006, a series of amendments to the Administration of
Justice Act and other laws have weakened independent judicial oversight
of police access to private and confidential information. Amnesty
International considers that “the introduction of a number of bills
has disproportionately restricted the right to privacy and – by
weakening legal safeguards – has eroded judicial protection of this
and other rights, including the right to a remedy for violations”.
Amnesty International explains that this relates notably to extended
tapping of telephones and computers,
extended
powers granted to the Police Intelligence Agency, which can compel any
public authority, doctor, psychiatrist or other individual working
in an official capacity to hand over confidential or private information
pertaining to individuals under investigation, without judicial
oversight or control; and the establishment in 2013 of a new supervisory
body to monitor the collection of data by the Intelligence Agencies
about individuals and legal persons through tapping of telephones
and computers,
which
can neither compel the intelligence agencies to stop a surveillance
activity nor submit its observations to parliament or to the judicial
system. The Police Intelligence Agency can, on the other hand, decide
to ignore such a recommendation by a mere notification to the Ministry
of Justice, with no further consequences.
26. The authorities provided extensive information about the counterterrorism
measures recently adopted. They stressed that interception of communications
and surveillance are ordered by a court for a limited period of
time (four weeks, renewable by court order), in line with the requirements
of the Administration of Justice Act. This measure may be reversed
at any time. In investigations related to offences against State
interests and security and offences against the Constitution and
the supreme authorities of the State, as well as terrorism (as listed
in section 12 and 31 of the Criminal Code), the police may take
the decision to carry out a surveillance measure. They must however
submit the case to the court no later than 24 hours from the initiation
of the measure and notify the court of any telephone numbers that
have been targeted. The authorities provided detailed information
about the procedures in place (obligation to appoint a counsel who
should be able to make a statement before the court deciding on
the surveillance order, and who may challenge the measure before the
court; obligation to notify the charges against the suspect; obligation
to notify the conclusion of telephone interception to the owner
of the telephone or computer in question, etc.). However, the court
may decide, upon a request from the police, to waive the notification
or to postpone it for a specified period of time, which may be extended
by a later decision if the notification is considered detrimental
to the investigation or to the investigation in another pending
case. In addition, the obligation to notify may be waived by the
court if this is deemed necessary to protect confidential information
about the investigative methods used by the police or if the circumstances
otherwise advise against disclosure.
27. The Alternative Party informed me about the recent amendment
to Article 136.2 of the Danish Penal Code (criminalisation of approving
terrorism), which has reportedly resulted in a “big increase of
the charges”.
28. Amnesty also pointed out that an individual who suspects that
he or she is or has been the subject of an illegal investigation
or tapping can lodge a complaint with the supervisory body, which
is empowered to investigate the case and to compel the police or
the Police Intelligence Service to stop any illegal or unwarranted
investigation, but it cannot inform the complainant if he or she
was in fact subjected to illegal investigation. “As a consequence,
the individual has no means of legal redress or effective remedies”, according
to Amnesty International.
The authorities clarified that the Danish
Intelligence Oversight Board can give recommendations to – among
others – the Danish Security and Intelligence Service, which can
decide not to follow them. In that case, the Board will have to
present the case to the Minister of Justice, who will make a decision
based on the notification. If a recommendation is not followed,
the government has to inform the Danish Parliament’s Intelligence
Services Committee.
Concerning
the informing of the individual subject of a possible illegal investigation,
upon his/her request the Danish Intelligence Oversight Board notifies
the complainant that no information is being processed by the Danish
Security and Intelligence Service in violation of the legislation
regarding the Services. Furthermore, the Board examines on its own
initiative whether special circumstances give rise to a full or
partial access to information about the processed data.
29. Amnesty International has expressed its concern about the
Danish Aliens Act and the Administration of Justice Act, which “allows
for expulsion and deportation of foreign nationals suspected of
involvement in terrorism-related activities, on the basis of judicial
procedures that allow for the use of secret evidence to support
expulsion on ‘national security grounds’”. A “secret” lawyer from
a list of pre-approved security-cleared lawyers is appointed to
act for the individual concerned, but cannot however discuss the
evidence with the individual concerned or his or her lawyer of choice
in the open part of the proceedings. “This prevents the individual
from effectively challenging the secret material or the allegations
based on it, thus jeopardising the individual’s right to a fair
process, possibly in breach of Denmark’s obligation to provide due
process and equality of arms”.
30. Likewise, on 2 July 2015, the government closed down the Iraq-Afghanistan
Commission of Inquiry established in 2012 by the previous government
to investigate actions of Danish soldiers involved in military operations
overseas, considering that “sufficient light has been shed on the
aforementioned questions”.
In particular, the Commission of Inquiry
had been tasked with investigating practices regarding the apprehension and
detention of Iraqis, whether Danish soldiers had handed over detainees
to personnel from other countries and with determining Danish liability
and responsibility for the detainees under international law. While
Amnesty International regretted that “the Commission was closed
before it could come to any conclusions, as the government stated
that there was no need for such an investigation as no new information
would emerge”,
the Danish Institute for Human Rights
recommended that “Denmark finalise the preliminary investigation carried
out by the internal task force under the Danish Defence Command
which revealed a number of critical circumstances and questions
about the Danish forces’ handling and transfer of detainees in Iraq
in 2003-2007 and which was suspended when the (now defunct) Independent
Commission was established”.
The authorities
asserted that the issues raised have since then been addressed by
the Danish Ministry of Defence when issuing mission directives.
It has also published a Military Manual which includes a separate
chapter devoted to detention issues.
31. In May 2016, the government and a number of political parties
agreed to appoint a group of impartial researchers that will have
access to documents (including classified ones) handed to the defunct
Commission of Inquiry. This group will be tasked with drawing up
a historical report on the Danish military engagements in Kosovo*
(1998),
Afghanistan (2001) and Iraq (2003), in order to establish the basis
of political decisions on Danish military involvement, ensuring
an accurate description and making it possible to learn from previous experiences.
It
would thus be important to ensure that the newly created group of
researchers is able to complete and finalise the work undertaken
by the Iraq-Afghanistan Commission of Inquiry, so as to determine the
liability and responsibility, under international law, of the Danish
forces in handling and transferring detainees in Iraq and Afghanistan
in 2003-2007, and to draw all the lessons from that experience.
32. Amnesty International also noted that the Danish Government
announced in 2011 that it would carry out an evidence-based review
of counterterrorism legislation. An expert group has recently been
appointed to carry out this task; however, Amnesty International
was concerned that further legislation was passed before the review
had even been carried out. In the meantime, the government decided
in autumn 2015 to “discontinue the expert group”, on the basis that
“a number of substantive counterterrorism initiatives have been
launched since the 2015 attacks in Copenhagen”.
The authorities announced that a
review of the legal framework of the Danish counterterrorism efforts
would be launched in the next couple of years., “once the effects
of these initiatives are known”.
The
aim of this review is to ensure the right balance between effective
measures and legal certainty for Danish citizens. The Alternative
Party regretted the decision to dissolve the independent expert
committee and pointed out that there was currently “no review nor
overview of Danish anti-terror efforts and laws and their legal
and economic implications”.
33. Finally, in echo of Assembly
Resolution 1507 (2006) and
Recommendation
1754 (2006) on alleged secret detentions and unlawful inter-State
transfers of detainees involving member States, I would like to mention
the letter sent on 23 September 2015 by the Danish authorities to
the Secretary General of the Council of Europe, acting under Article
52 of the European Convention on Human Rights (ETS No. 5, “the Convention”), namely
seeking explanations from all member States on their compliance
with the legal obligations under the Convention in relation to “the
question of secret detention and transport of detainees suspected
of terrorist acts, notably by or at the instigation of foreign agencies”:
- Denmark explained that an Inter-ministerial
Working Group for the Compilation of the Report Concerning Secret
CIA Flights in Denmark, Greenland and on the Faroe Islands had been
set up in 2008. Its report of 23 October 2008 concluded that the
information received from United States did not allow it to be authoritatively
substantiated: 1) whether or not CIA flights had occurred there,
including illegal transit of detained persons; 2) whether the authorities
from these States should have had or actually did have knowledge
of the alleged extra-judicial CIA activities. In their comments,
the Danish authorities reiterated their position that the 2008 report
included a series of substantiated conclusions that demonstrate
that the current control regimes are adequate. However, “it is not
possible to rule out that the United States of America will continue
to make use of secret detention programs in the future, and that
these programs amongst other things involve extraordinary renditions,
Denmark should in the view of the Working Group continue to strongly
criticise such detention programs both within the relevant international
forum and in the bilateral contacts with the United States of America”.
The working group also issued a number of recommendations addressed
to the government in order to make Denmark’s position clear on that
issue with international partners, and suggested procedures to prevent
such renditions in the future;
- the Danish Institute for International Studies had examined
the allegations that the Danish Government had not raised the critical
questions with the US authorities requested by the Minister of Foreign
Affairs in 2011 and concluded, in 2012, that there was no basis
for such allegations, and that the conclusions of the Inter-ministerial
Working Group were correct Amnesty International, however, challenged
the investigation carried out by the Danish Institute for International
Studies, which it considered to be inadequate, as the investigation
focused exclusively on the territory of Greenland, relied entirely
on written documents and did not collect any new information or
use data dating back later than 2008.
34. In light of the conclusions of the reports by the Inter-ministerial
Working Group and the Danish Institute of International Studies
and the guarantee provided to Denmark by the United States
not to transport detainees through
the airspace of Denmark, Greenland and the Faroe Islands without
the consent of the Danish authorities, the Danish Government in
2012 considered the matter closed.
4. Human
rights
35. Given the nature of the political
system in Denmark, I enquired about the system of protection of
human rights in the two semi-autonomous entities, and the rationale
for the reservations made to the application of Council of Europe
conventions ratified by Denmark in the Faroe Islands and Greenland.
36. The Government of Greenland stated in its comments that the
general United Nations and Council of Europe human rights instruments
apply to Greenland. The Government of Greenland is responsible for
the protection of human rights in the fields of responsibility taken
over from the Government of Denmark. A Greenlandic Council for Human
Rights was established in 2013. In addition, the mandate of the
Danish Institute for Human Rights was extended to Greenland in 2014.
The Government of Greenland reports to the different United Nations
treaty bodies as part of the Danish reporting. It is usually necessary
that Denmark takes a territorial exemption as regards Greenland
when ratifying new international conventions in order to examine
if new legislation is necessary and in order to ensure that the
convention can be presented to the Parliament of Greenland for acceptance.
37. The Government of the Faroe Islands stressed that, as a rule,
Denmark makes territorial reservations for the Faroes unless the
Faroese authorities have already decided that the Faroes should
be covered by the agreement. Normally the process involves examination
of whether the Faroes comply with all the requirements in the conventions
or protocols and then, if deemed advisable, the convention or protocol
will be proposed to the Faroese Parliament. These processes can
be lengthy, especially with the very limited resources available, and
there are therefore protocols that are not yet dealt with. The government
has, however, highlighted their commitment to the international
conventions on human rights in the coalition agreement and this
is therefore an area of importance. The Minister of Foreign Affairs
and Trade has set up a working group in order to examine the different
national monitoring mechanisms that would be compatible with Faroese
society – only 49 000 people – and still be in line with the United
Nations Paris Principles. The working group has begun its work and
is expected to give its recommendations by the end of 2016. Currently,
human rights are monitored by NGOs in the Faroe Islands and through
various initiatives and authorities, for example the Parliamentary Ombudsman,
the Gender Equality Commission and the Faroese Data Protection Agency.
38. I would like to thank the authorities of Greenland and the
Faroese Islands for their contributions to this report. I hope that
their initiatives and hard work will soon lead to the reservations
being lifted.
4.1. Protection
of minorities
39. Denmark ratified the Framework
Convention for the Protection of National Minorities (ETS No. 157)
in 1997. While there is no definition of “minority” in the Constitution,
the Framework Convention solely applies to the German minority in
South Jutland of the Kingdom of Denmark. Likewise, the European
Charter for Regional or Minority Languages (ETS No. 148), ratified
in 2000, applies to the German minority language in Southern Jutland.
Denmark excluded the application of the Charter to the Greenlandic
and Faroese languages, considering the high degree of protection
these languages already enjoyed through their home rule.
40. In this respect, the Framework Convention Advisory Committee
has consistently invited the Danish authorities to pursue a dialogue-based
approach in their relations with the individuals and groups that
might be interested in the protection provided for by the Framework
Convention to take into account the specific needs of Faroese and
Greenlandic language speakers, or of the Rom living in Denmark (between
5 000 and 10 000).
41. In its 2015 recommendations for immediate action for the implementation
of the Framework Convention, the Committee of Ministers invited
the authorities to introduce additional and targeted initiatives
and policies to combat all manifestations of intolerance, racism
and xenophobia, in particular by addressing systematically racist
manifestations in the media and the political sphere; and intensifying
dialogue with representatives of different groups, in order to analyse
the existing needs and find appropriate solutions allowing all interested persons
to receive teaching in or of their language.
42. With respect to the protection of the rights of persons belonging
to the German minority, the Committee of Ministers invited the Danish
authorities to enable them to continue to be able to communicate
fully using the German language, including electronically, with
all bodies of the administration,
but also to opt for a structured
approach for the implementation of the relevant provisions of the
European Charter for Regional or Minority Languages, increase the
level of radio broadcasting and provide television broadcasts in
German and increase awareness and appreciation of German as a minority
language of Denmark.
4.2. Fight
against violence against women
43. I welcome the ratification
of the Convention on Preventing and Combating Violence against Women
And Domestic Violence (CETS No. 210, “Istanbul Convention”) by Denmark
in 2014. It declared, however, that, until further notice, the convention
shall not apply to Greenland and the Faroe Islands, which is a pity
in the light of the information we have. No country report has as
yet been prepared by the Group of Experts on Action against Violence
against Women and Domestic Violence (GREVIO). However I find it
useful to draw attention to two issues highlighted by Amnesty International,
notably in relation to impunity in rape cases.
44. In 2013, the Criminal Code provisions on rape and other forms
of sexual abuse were strengthened. “The law now penalises as rape
non-consensual sex with a victim in a “helpless state” and all provisions
to reduce or exclude punishment for rape or sexual violence within
marriage have been removed”. The attrition rates of reported rapes,
however, remain high: “On an annual basis, 400-600 cases of rape
are reported to the police. The number of actual rapes committed
is estimated to be around 3 600 per year.” Furthermore, “only one
in five reported rapes results in a conviction”.
The
majority of reported rape cases were closed by the police – before
a formal police investigation had even been started, according to
a recent report from the State Prosecutor’s Office – or the prosecution
(mostly due to the “state of the evidence”) and never reached trial.
In November 2015, the Director for Public Prosecutions called for
changes to how police were handling these cases. The reports, however,
did not include the examination of the reason for the disproportionately
high attrition rate in prosecuting cases of rape.
45. The situation was also worrying in the Faroe Islands: Amnesty
International had noted that the Penal Code “lagged behind the Danish
penal code”: Faroese legislation penalised non-consensual sex with
a victim in a “helpless state” as sexual abuse rather than rape
and stipulated a much lighter penalty for such acts. “In certain
instances, it also reduces the level of penalty for rape and sexual
violence within marriage, or provides for exclusion of punishment
altogether.”
In the comments provided by the Faroese
authorities, I noted with satisfaction that the Faroese Government
adopted in 2011 a five-year Action Plan to Prevent Violence in Permanent
and Close Relationships, with four main focuses: 1) Information
and prevention; 2) Assistance and support for the victim; 3) Initiatives
targeting occupational groups; 4) Treatment options for those who perpetrate
violence. In addition, the parliament requested the government to
draft a programme concerning sexual abuse as well to complement
the Action Plan.
I
was also informed that the Faroese Government is in the process
of strengthening the provisions for rape and other forms of sexual
abuse in the Criminal Code. This proposal will be submitted to parliament
in November 2016, and should notably criminalise sexual assault
in all circumstances, including within marriage, which is a very
positive development.
46. I expressed to the Danish authorities my expectation that
the country, which is now a Party to the Istanbul Convention, would
continue to pay close attention to the fight against violence against
women and domestic violence, including in the semi-autonomous entities,
so as to be in a position to lift the territorial reservations on
the application of the convention to the Faroe Islands and Greenland.
Following this observation, the Danish Ministry of Justice has decided
to ask the authorities in the Faroe Islands and Greenland to indicate
whether they wish the Convention on Preventing and Combating Violence
against Women and Domestic Violence to be applied to them, which
is a positive move. If these entities wish to be subjected to the
convention, the Danish Government will – together with the authorities
in the Faroe Islands and Greenland – examine the need for legislative
amendments in order to meet the obligations under the convention.
I
encourage the Danish authorities, and those of the Faroe Islands
and Greenland, to jointly undertake the necessary measures and adopt
the necessary legislation to ensure that the convention can be applied
on the whole territory of the Kingdom of Denmark.
4.3. Fight
against human trafficking
47. Denmark ratified the Council
of Europe Convention on Action against Trafficking in Human Beings (CETS
No. 197) on 19 September 2007 (which however applies neither to
the Faroe Islands nor to Greenland). The Group of Experts on Action
against Trafficking in Human Beings (GRETA) issued a first evaluation
report in December 2011,
leading the Committee of the Parties
to issue several recommendations in January 2012,
to
which the Danish Government replied in February 2014.
48. The main issues identified by the Committee of Ministers referred
to the identification of victims of trafficking; the need to develop
preventive measures to address trafficking for the purpose of labour exploitation;
providing victims of trafficking with an adequate recovery and reflection
period; reviewing the current institutional and procedural framework
for the return and repatriation of victims of trafficking having regard
to their safety, protection and dignity and in order to avoid re-victimisation;
reviewing the system for granting residence permits to victims of
trafficking with a view to ensuring that the victim-centred approach underpinning
the convention is applied and in order to prevent re-trafficking;
providing for the possibility of not imposing penalties on victims
of trafficking for their involvement in unlawful activities, to
the extent that they were compelled to do so.
49. GRETA performed a second evaluation round and carried out
an evaluation visit in May 2015. The reply of the Danish authorities
was published in March 2015,
reporting
an increase in the number of identified victims of trafficking in
Denmark, both in relation to trafficking for prostitution and for
labour exploitation. The Criminal Code was amended in 2012 (to align
with EU Directive 2011/36/EU on preventing and combating trafficking
in human beings and protecting its victims), raising the maximum
penalty for trafficking from eight years’ imprisonment to 10 years,
extending the purpose of exploitation to “exploitation for criminal
activities”, and providing Denmark with extraterritorial jurisdiction
in cases of trafficking where the perpetrator is a Danish national
or had permanent residence in Denmark at the time of the provisional
charge and when committing the offence. The Aliens Act was amended
in 2013 to extend the maximum reflection period from a total of 100 days
to a total of 120 days, and to grant temporary residence permits
to foreign nationals, including victims of trafficking, if their
presence in Denmark is required for investigation or proceedings.
The Danish Action Plan to Combat Human Trafficking 2015-2018 was
launched in May 2015 (and amended in November 2015), after most
of its funding (amounting to 88 million Danish Krones – approximately
11.8 million euros) was approved by the parliament in October 2014.
50. Based on GRETA’s report, published in June 2016,
the Committee of the
Parties adopted
Recommendation
CP(2016)4 on 23 May 2016
in
which it welcomed the progress made by Denmark, such as the criminalisation
of human trafficking (i.e. exploitation for criminal activities)
and the increase of the maximum penalty for this offence from 8
to 10 years, the introduction of a new provision in the Aliens (Consolidation)
Act concerning the granting of a temporary residence permit to victims
of trafficking for the purpose of their co-operation in the investigation
or criminal proceedings, and the extension of the maximum duration
of the reflection period from 100 to 120 days. The Committee of
the Parties also adopted a list of recommendations to Denmark, in
order to,
inter alia improve
the identification procedure for victims of trafficking (including
those with an irregular migration status) and increase the incentives
for self-identification by victims of trafficking. The Committee
also recommended that the authorities pursue a proactive approach to
the identification of victims of trafficking for the purpose of
labour exploitation by expanding the mandate of the Danish Customs
and Tax Administration (SKAT) and labour inspectors and improve
the identification of, and assistance to, child victims of trafficking,
including unaccompanied children. In addition, it recommended reviewing
the legislation in order to ensure that all victims of trafficking
with an irregular migration status are unconditionally provided
with an adequate recovery and reflection period.
4.4. Legislation
on asylum and immigration
51. Denmark has been adopting restrictive
asylum and immigration policies since 2002. This issue remains sensitive,
but seems to enjoy a large backing from most political parties.
While the Danish authorities have taken steps to address human rights
issues, including increasing the independence of the Refugee Appeals Board,
further improvement is still needed.
52. In 2013, the Commissioner for Human Rights, Nils Muižnieks,
expressed concern in respect of the rights of children in the context
of asylum and immigration, family reunification issues involving
children, life in asylum centres for indefinite periods of time,
the fate of unaccompanied minor migrants who have disappeared from reception
centres or the detention of minors for asylum and immigration purposes,
that he considered should not be allowed and should be replaced
with appropriate care arrangements. The Commissioner was concerned that
considerations relating to migration control tend to have primacy
over the best interests of the child in actions and decisions affecting
children in the context of asylum and immigration.
53. The Commissioner also exhorted the Danish authorities to ensure
that, when rejected asylum seekers are returned, their right not
to be exposed to a real risk of being subjected to treatment contrary
to Article 3 of the European Convention on Human Rights or onward
refoulement is thoroughly respected.
The detention of asylum seekers and irregular migrants should remain
exceptional and be for the shortest possible length of time, and
permanent residence should be granted to refugees as early as possible
in order to establish a stable basis for their integration in Denmark.
In this respect, the Venstre and
Social Democratic Party share the concerns about prolonged stays
in asylum centres for foreigners whose asylum applications have
been denied, and are in favour of strengthening repatriation measures
in order to minimise prolonged stays.
54. The European Commission against Racism and Intolerance (ECRI),
for its part, questioned the access of asylum seekers to a lawyer
during the entirety of the asylum procedure, as well as the possibility
to attend upper secondary school or university in Denmark.
55. The question of the detention of asylum seekers was also raised
by the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT), which visited in September 2014
the Ellebæk immigration detention centre. The CPT expressed concern
about the need to maintain the establishment in a decent state of
repair, limit the carceral environment to a minimum and ensure regular activities
are offered. The CPT also recommended that all newly arrived detainees
are clinically assessed and that a specific screening is put in
place aimed at identifying victims of torture. There was also a
need to improve communication with the detainees and to enhance
their contacts with the outside world.
56. In its reply of March 2015, the Ministry of Justice observed
that according to the Danish Aliens Act an asylum seeker can only
be deprived of liberty to ensure enforcement of a refusal of entry,
expulsion, transfer or “in circumstances where the asylum seeker
refuses to co-operate in the administrative procedures of the Danish
Immigration Service, and if less interfering measures prove to be
insufficient in order to ensure the presence of the asylum seeker
for the purpose of expulsion”. The Danish national police strategy
concerning the use of detention in relation to the Danish Aliens
Act stipulates that detention can only be upheld as long as it is
necessary and proportional. The use of detention must be in accordance
with national law and Danish international obligations and with
special consideration for vulnerable asylum seekers such as minor
asylum seekers. The placement of a minor asylum seeker under the
age of 15 in a secure institution cannot happen for the sole reason
of not having a resident permit in Denmark, and will always be for
as short a period of time as possible.
57. In November 2015, a set of stricter asylum laws was adopted
by parliament under urgent procedure. New rules on detention of
newly arrived asylum seekers and rejected asylum seekers were introduced
in the Danish Aliens Act and resulted,
inter
alia, in the increase of detainment periods, the extension
of family reunification waiting periods to three years, but also
the subcontracting of the use of force (such as handcuffs) to private
companies and the possibility for the authorities to suspend the
right of a detainee to see a judge within a 72-hour period. With
regard to the latter, I was told that, as a rule, this could only
be activated in special situations.
The authorities explained that newly arrived
asylum seekers can only be detained during the registration and
identification process. Detention of rejected asylum seekers will
only apply to those who do not co-operate on their return and when
a return is foreseeable. The government firmly believes that the
new rules are in conformity with Denmark’s international obligations;
the rules on the length of detention in the Danish Aliens Act are
based on the EU Return Directive.
In
November 2015, as a result of the significant increase in asylum
seekers, the Danish Immigration Service introduced temporary accommodation
in tents to accommodate 250 asylum seekers in northern Jutland.
58. The Commissioner for Human Rights expressed his concern about
these amendments and recalled that “recent restrictive changes to
asylum and immigration law in Denmark raise serious concerns of
conformity with human rights standards. The government should reconsider
them and ensure that law and practice fully comply with Denmark’s
obligation to uphold refugee protection standards”. The Commissioner
feared that “the possibility of making increased use of detention
in specific circumstances, combined with the elimination of important
legal safeguards regarding detention, could lead to detention being
used disproportionately and indiscriminately in respect of asylum
seekers, in contradiction with Article 5 of the European Convention
on Human Rights which protects the right to liberty”.
59. The Commissioner also criticised further restrictive measures,
including the tightening of criteria to obtain a permanent residence
permit, the significant diminishing of the duration of residence
permits, notably for those granted international protection, and
the proposal to seize assets of asylum seekers arriving in Denmark,
in order to cover their subsistence needs, which, for the Commissioner
“could amount to an infringement of the human dignity of the persons
concerned. It could also lead to violations of the right to property
enshrined in Article 1 of Protocol No. 1 to the European Convention
on Human Rights”.
These measures were also criticised
by NGOs,
including Amnesty International.
60. I find it useful to mention the arguments presented by Minister
Støjberg in her reply to the Commissioner’s letter,
which emphasised
that the newly adopted rules were necessary in the current situation,
and complied with Denmark’s international obligation. A number of
clarifications were given by the Minister:
- In respect of the detention of asylum seekers, the police
would be required to make an individual assessment in each case
as to whether less intrusive means could be applied. The Minister
indicated that “newly arrived asylum seekers can only be detained
if it is necessary to complete the registration and identification
process. The asylum seeker shall be released immediately after this
process is completed”.
- The suspension of automatic judicial review within three
days could be activated in a period with “a very significant increase
in the number of arriving refugees and migrants” (i.e. “when the
number of detainees is so high that it is not possible for the police
and/or the courts to decide on the lawfulness of detention within
three days”), only in “special circumstances”; it did not however
amount to a general suspension of judicial review; to date, this
clause has never been activated.
- In respect of residence permits, refugees are expected
to meet the same requirements as any other aliens. The new rules
extended the permanent residence requirement to six years at least
for all aliens (four in some specific cases).
- While the primary criterion – which remains untouched
– for the selection of quota refugees was whether the person concerned
is entitled to protection or not, a new secondary criterion was
introduced with the new regulation, assessing the person’s potential
to integrate, based on his or her linguistic skills, educational
aspects and work experience, family relationship networks and the
refugee’s age and motivation.
- With respect to seizure of asylum seekers’ valuables,
Denmark is to provide asylum seekers with basic subsistence, health
care, services and accommodation, unless these asylum seekers have
the financial means to do so themselves. The amendments of 26 January
2016 enable the police to use its search rights to search clothes
and luggage with a view to finding assets and seize any amounts
of money exceeding € 1 300 (sentimental items, such as wedding rings,
being excluded from seizure). Complaints related to seizure could
be lodged with the police.
61. In the field of migration, the issue of family reunification
has raised questions:
- ECRI
regretted that in June 2011, “the Aliens’ Act was amended to make
the already existing strict rules for spousal reunification even
stricter”. These provisions include the requirement that the spouse/partner living
in Denmark should not have received certain types of public assistance
for the past three years and that, normally, he/she should have
had full-time ordinary employment in Denmark for at least two years
and six months out of the past three years. Moreover, the entire
cost of the spousal reunification procedure remains quite high,
which amounted to an indirect discrimination against these groups,
which are more affected by unemployment and poverty than ethnic
Danes. ECRI urged the Danish authorities to
carry out a wide-ranging reform of the spousal reunification rules
in order to remove any elements which amount to direct or indirect
discrimination and/or which are disproportionate to their stated
aims. In its March 2015 conclusions related
to this specific interim recommendation, ECRI regretted that the Danish
authorities had not taken any initiative to carry out a wide-ranging
reform of the spousal reunification rules.
- The European Court of Human Rights (“the Court”) has addressed
the issue of family reunification in at least two cases: in Osman v. Denmark, the Court concluded
that Article 8 had been violated after the authorities refused to
renew the residence permit of a Kenyan minor – who had spent the
formative years of her childhood and youth in Denmark – after she
had been sent abroad (on a “re-education” journey ) against her will. In the given circumstances,
the Court stressed that it could not be said that the applicant’s
interests had been sufficiently taken into account or balanced fairly
against the State’s interest in controlling immigration. In another
case, Biao v. Denmark, the Court ruled (by 12 votes to 5)
on 24 May 2016 that the Danish legislation which discriminates against
people who are born outside Denmark and obtain Danish citizenship
later in life is in breach of Article 8 (combined with Article 14). The
case referred to an amendment to the Aliens Act adopted in 2003,
which stipulates that the “attachment requirement” (tilknytningskravet) is lifted for
those who have held Danish citizenship for at least 28 years” (now
26) or who were born and raised in Denmark or came to Denmark as
children and have had legal residence for 28 years. The Court found
this rule discriminatory, as it “favoured Danish nationals of Danish
ethnic origin, and placed at a disadvantage, or had a disproportionately
prejudicial effect on persons, … who acquired Danish nationality
later in life and who were of ethnic origins other than Danish”. The
Court also found that – having regard to the very narrow margin
of appreciation in the present case – the Danish Government had
failed to show that there were compelling or very weighty reasons
unrelated to ethnic origin to justify the indirect discriminatory
effect of the 28-year rule. In the reply issued in June 2016, Integration
Minister Inger Støjberg indicated that the “attachment requirement”
would now be applied to all Danes.
- According to Amnesty International, current practice in
asylum cases fails to ensure that sufficient consideration is always
given to the best interests of the child. If parents do not meet
the requirements for asylum on grounds of persecution, the whole
family is rejected and ordered to leave the country. The effect
of the rejection on the child is not considered in such decisions,
even in situations where the family is likely to experience extreme
hardship in supporting itself, including the children.
62. In January 2016, the Commissioner for Human Rights questioned
the new package of amendments (eventually adopted by the Danish
Parliament on 26 January 2016), which aimed at limiting access to
family reunification for foreigners with a temporary protection
status. “The proposal to postpone the right to family reunification
to three years for beneficiaries of temporary subsidiary protection raises
issues of compatibility with Article 8 of the European Convention
on Human Rights which protects the right to respect for one's family life
and could also infringe on the rights of children to live within
their family environment, as prescribed by the United Nations Convention
on the Rights of the Child.”
63. In her reply to the Commissioner’s letter, Ms Støjberg, Minister
for Immigration, Integration and Housing of Denmark, stated that
the usual practice (i.e. before the legislative amendment of January
2016) was that family reunification would in general not be granted
to an alien with temporary protection status whose residence permit
had not (yet) been extended after one year. The amendments of 26
January 2016 extended this period to three years. The regulation
on temporary protection status has a limited scope and concerns
only 20% of those who were granted asylum in Denmark.
The Minister also informed the Commissioner
that individual assessments would be performed and family reunification
granted based on individual circumstances and that it was foreseen
that cases may arise where the rights of the child required that
family reunification be granted.
64. In their latest comments on that issue, the authorities stressed
that they would perform an individual assessment of each case, and
that exceptions would be made in all cases where Denmark’s international obligations
so require. They also made it clear that the regulation on temporary
protection status has a limited scope. Thus, the regulation on temporary
protection status does not apply to refugees who are granted a residence
permit according to the 1951 Convention Relating to the Status of
Refugees, and aliens who – due to individual circumstances – are
at risk of the death penalty or of being subjected to torture or
inhuman or degrading treatment or punishment in case of return.
The regulation on temporary protection status only applies to asylum
seekers who are entitled to protection due to a general unstable
situation in the home country at such a level of intensity that
anyone would be in real risk of being subjected to inhuman or degrading treatment
in case of return.
65. On 12 April 2016, the Court of Justice of the European Union
(CJEU) ruled that Danish immigration law illegally limits the rights
of Turkish workers to bring their families to Denmark.
The authorities explained that the
case concerned the (now former) limitation of the requirement (at
that time, the application for family reunification had to be submitted
within a two-year deadline starting from the date when the parent
residing in Denmark fulfilled the requirements for family reunification
with the child). Referring to the fact that the integration requirement
only applied to applications for family reunification filed after
the two-year deadline (i.e. the fact that the time of filing the
application for family reunification was decisive for whether the
integration requirement would be made), the CJEU ruled that the
integration requirement could lead to “incoherent results”. As a
result, the integration requirement was found to be disproportionate
by the CJEU. However, the CJEU also ruled that the objective of
ensuring the successful integration of third-country nationals in
the member State concerned, referred to by the Danish Government,
may constitute an overriding reason in the public interest. On the
basis of the judgment, the Danish Parliament passed new legislation
abolishing the two-year deadline.
This ruling also prompted Denmark to fast-track
new legislation that will require the immigration authorities to
evaluate the “ability to integrate” of all children above the age
of six who have a parent in their home country. At the same time,
this bill was aimed at “tightening the rules on family reunification so
that the authorities could decide for [themselves] who comes to
Denmark … under family reunification”, as explained by the Integration
Minister Inger Støjberg.
4.5. Fight
against discrimination
66. The Advisory Committee on the
Framework Convention for the Protection of National Minorities notes that
there is a solid legal framework in the field of anti-discrimination
policies (Section 71.1 of the Constitution,
1971 Prohibition
of Discrimination due to Race Act, 1987 Prohibition of Discrimination
due to Race Criminal Act, 1996 Prohibition of Discrimination in
the Labour Market Act (consolidated in 2008), and the 2003 Ethnic
Equal Treatment Act (consolidated in 2012)). A general climate of
tolerance prevails in Denmark, nurtured by continuous support programmes
and initiatives, in particular by the Danish Institute for Human Rights,
aimed at better understanding the problem of intolerance and discrimination
among people belonging to different minority groups. Efforts to
increase the participation of minorities in State institutions,
in particular in the police, have been acknowledged.
67. In its 2012 report, the European Commission against Racism
and Intolerance identified a number of issues, including the need
to increase the visibility of the Board of Equal Treatment and its
knowledge of issues pertaining to discrimination based on “race”,
ethnic origin, religion or belief and nationality (which is only
the case in relation to the labour market). It welcomed the measures
taken to integrate immigrants into the labour market. It expressed
concern about the language examination and citizenship test as well
as the cost of the citizenship procedure. ECRI regretted that some
media have continued to portray minority groups, in particular Muslims
and Roma, in a negative light and that some politicians, especially
from the Danish People’s Party, have continued to make disparaging
statements about groups of concern to ECRI in general and Muslims
in particular. The negativity of public and political discourse
has had a disproportionately adverse effect in a number of important
policy areas. ECRI also regretted that Denmark had still not ratified
Protocol No. 12 to the European Convention on Human Rights (ETS
No. 177).
68. These concerns were also shared by the Commissioner for Human
Rights, who deplored that public discourse and hate speech targeting
ethnic and religious minority groups, particularly Muslims, continue
to be of concern, in spite of reported improvements. Although a
number of cases of hate speech have been prosecuted in recent years,
the number of convictions remains limited.
69. ECRI thus encouraged the Danish authorities to ensure that
politicians act responsibly when addressing issues pertaining to
groups of concern to ECRI. ECRI recommended that the Danish authorities
encourage the media to refrain from broadcasting any information
likely to fuel discrimination and intolerance towards Roma. The
authorities should encourage debate within the media on the image
which they convey of Islam and Muslim communities and on their responsibility
in this respect to avoid perpetuating prejudice and biased information. The
Venstre and the Social Democratic Party, however, believe that this
would run counter to the fundamental freedom of expression. In their
view, the best way to combat discrimination and intolerance is by
open and frank debate – suppressing information will only serve
the interests of those trying to exploit fear and mistrust.
The Danish People’s Party, for its part, considers
that there is no need for special efforts or campaigns to combat racism
in newspapers or on television as it is up to the courts to assess
whether someone crosses the line in the debate.
70. ECRI also recommended that the Danish authorities amend the
requirements for obtaining a permanent residence permit in order
to facilitate applicants’ access thereto. ECRI encouraged the Danish
authorities to intensify their efforts to recruit members of ethnic
minorities to the police.
71. In its 2015 conclusions (on specific recommendations), ECRI
noted that the Danish national police had intensified its efforts
and taken a number of initiatives to increase diversity in policing.
ECRI viewed these steps as positive measures and the evidence of
sincere efforts to diversify the police force.
72. The Commissioner, for his part, urged the authorities to firmly
condemn all instances of racist and xenophobic speech in political
discourse and raise awareness about the limits of freedom of expression
in accordance with international standards and the case law of the
European Court of Human Rights. Positive steps were taken in 2011
by the Director of Public Prosecutions to provide detailed guidance
to prosecutors and police officers on the processing of cases of
hate speech and hate crime. Further efforts should be made to encourage
the reporting of hate crimes.
As a matter of fact, the Framework
Convention Advisory Committee noted that the number of cases dealt
with by the Board of Equal Treatment Act had been rising steadily
every year (64 cases in 2009, 263 cases in 2013, of which 41 concerned
allegations of discrimination based on race or ethnic origin).
73. The Advisory Committee notes with concern a proposed amendment
to the Criminal Code (Section 266.
b)
which would decriminalise insulting and degrading speech and criminalise
only statements leading to disturbance of the public order. This
would further weaken the Criminal Code, which already does not offer
sufficient and effective protection against hate speech, runs contrary
to Committee of Ministers Recommendation No. R(97)20 on hate speech
and could lead to the worsening of the climate of public debate in
Denmark and increased polarisation of society.
I
was informed that, since the 2015 ECRI report, the Danish Government
has decided to ask the Standing Committee on Criminal Law to assess
whether it is possible to make changes to section 266.
b of the Criminal Code while respecting
Denmark’s international obligations.
74. Finally, concerning the rights of lesbian, gay, bisexual and
transgender (LGBT) people, Denmark continues to improve its legal
framework, with a new gender recognition law that came into effect
in September 2015, eliminating previous legislation that had required
transgender persons to undergo psychiatric evaluation and sterilisation
when obtaining legal documents reflecting their new gender.
Denmark is about to take
steps to ensure that transgender will no longer appear on Denmark’s
definition of mental illnesses as from 1 January 2017, as recently
confirmed by the Ministry of Health;
this will hopefully change practices.
Pro memoria, Denmark became the
first country in the world to adopt same-sex civil unions in 1989,
and the parliament overwhelmingly passed same-sex marriage legislation
enabling couples to wed in the Lutheran State church of their choosing
in 2012.
Same-sex marriage legislation was
approved by the Greenland Parliament in May 2015 and by the Faroese
Parliament on 29 April 2016.
4.6. Police
complaints authority
75. The setting up of an independent
police complaints authority (Police Complaints Authority) was commended
by the CPT. In this context, it is important that law-enforcement
officials are easily identifiable, so as to facilitate the prosecution
and sanctioning of perpetrators of abuse. The Danish authorities
should also examine reported practices of ethnic profiling by the
police and ensure that adequate safeguards against this phenomenon
are in place.
76. In October 2014, the Minister of Justice announced the introduction
of ID numbers on Danish police uniforms to enable the identification
of police officers in case of complaints, at the request of the
Independent Police Complaints Mechanism. However, little progress
has been noted on that issue according to Amnesty International.
We
learnt, however, that, since then, police officers do have ID numbers
on their uniforms.
77. Amnesty International was also concerned that the police complaint
system in the Faroe Islands is not adequate. Complaints are initially
examined by the local board, which decides whether a complaint should
be forwarded to the State prosecutor for further investigation or
be dismissed. The local board is comprised of the head of the police
in the Faroe Islands, two police officers and four members of the
Faroese Government, which means that the process is neither impartial
nor objective. The Danish Government stressed however that it has
no reason to doubt the objectivity or impartiality of the Faroese
police complaint system in general or the local board in particular.
The Government of the Faroe Islands mentioned
that legislation concerning the police is under the Danish authorities’
responsibility. This means that the Faroese Parliament and Government cannot
enforce legislation in this area. The Faroese authorities have asked
the Danish authorities to bring the legislation regarding the police
in the Faroes up to date, including by changing the system of complaints
about the police. It is not clear as to when this updated legislation
will come into force in the Faroes.
78. Pursuant to the Faroese Administration of Justice Act, there
is no time-limit for pretrial detention, and this applies also to
cases of detention in solitary confinement. Under Faroese law, pretrial
detention can be prolonged indefinitely,
which
was confirmed by the authorities when explaining that pursuant to
the Faroese Administration of Justice Act, a court order on pretrial
detention must be limited to four weeks and for solitary confinement
to two weeks, which can be extended an unlimited number of times
by a new court order. The Danish Government is of the opinion that,
in practice, pretrial detention and solitary confinement is not
being used excessively in the Faroe Islands.
I was also informed that the Faroese authorities
have called on the Danish authorities to bring the legislation regarding
the Administration of Justice Act up to date. Part of such a comprehensive
work will include the provisions for pretrial detention. The Danish
Ministry of Justice has recently stated that a working group will
be established to carry out this comprehensive review. The working group
is expected to deliver its proposal within two to three years. After
this the proposal will be presented to both the Danish and the Faroese
Parliament.
4.7. Prison
conditions
79. The last visit of the CPT was
in 2014. The visit focused on the treatment of inmates in several
prison establishments, as well as of young persons held in two secure
institutions for juveniles.
80. In relation to prison matters, the CPT noted that there were
no allegations of deliberate physical ill-treatment by prison staff
and the report noted positively the downward trend in the resort
to solitary confinement of remand prisoners by court order. However,
safeguards surrounding the application of judicial restrictions
on remand prisoners’ contacts with the outside world were still
to be reinforced. There was also a need to ensure that all inmates
are properly interviewed and physically examined by health-care
staff within 24 hours of their admission to prison. The CPT was
again critical of the application of the measure of immobilisation
in prisons. It recommended enhanced training of prison officers,
to help prevent cultural and linguistic communication problems between
foreign national prisoners and staff, which could easily deteriorate
into conflictual behaviour. In its recent report, the CPT expressed
some concern about inter-prisoner violence, intimidation and sexual exploitation
and recommended inter alia that
comprehensive anti-bullying strategies be put in place.
81. In respect of institutions for juveniles, while welcoming
the wide range of structured activities offered, the supportive
pedagogical approach and the accommodation of juveniles in well-staffed
small living units, the CPT was nevertheless concerned that the
majority of juveniles on remand had judicial restrictions placed
on their contacts with the outside world, often for extensive periods.
4.8. Psychiatric
institutions
82. The rights of persons in psychiatrist
institutions drew the attention of both the Commissioner for Human Rights
and the CPT.
83. The Commissioner called on the Danish authorities to ensure
that legislation and practices regarding coercion in psychiatry,
including forced hospitalisation, forced treatment and the use of
physical restraints are in full compliance with human rights standards.
He welcomed the publication of a comprehensive report on the care
of persons with mental health problems in October 2013, which aimed
at reducing involuntary placement and treatment and limiting drastically
the use of coercion. He expected this report to be followed up swiftly through
the adoption and implementation of an action plan. He also invited
the authorities to strengthen guarantees against arbitrary or disproportionate
decisions regarding forced placement, ensure respect for the consent
of the patient and prevent further violations of the right of patients
to physical integrity.
84. The CPT, for its part, appreciated the constructive attitude
and the overall acknowledgement, both by the central authorities
and the staff in the hospitals visited, of the need to reduce the
resort to physical immobilisation of patients in a bed (fiksering) in psychiatric hospitals.
However, the CPT remained seriously concerned about the resort to
immobilisation, and notably immobilisation lasting longer than 48
hours, which might have been at least partly due to low staffing
levels. It thus recommended reinforcing the number of nurses.
85. In its reply of March 2015, the Danish authorities presented
the action undertaken to address the issues raised by the CPT, including
a comprehensive long-term action plan for the future development
and expansion of the services to people with mental illness, presented
on 15 May 2014, which aims at reducing coercion in psychiatry, including
mechanical restraint, and will support the new framework and direction
for psychiatry. Inspired by what is being done on cancer and heart
disease, the government formed a task force for psychiatry, which
will be following developments in general, including monitoring
the goal of a 50% reduction of coercive measures. The Psychiatric
Act, as amended in 2010, lays down the conditions for using coercive
measures as long as they are needed, with more stringent requirements
for the use of mechanical restraint, including a minimum frequency
of medical supervision and simultaneous assessment of whether restraint
should cease or continue. The Ministry of Health disregarded the
possibility of establishing a legal limit to the duration of immobilisation
but proposed instead that clear and uniform rules be laid down stipulating
a minimum frequency of medical supervision and simultaneous assessment
of whether the immobilisation should cease or continue. The government
had also planned to amend the Psychiatry Act in order to ensure
better rights for psychiatric patients who are subject to detention
or coercion and aimed at clarifying the legal status of minors in
psychiatric care, ensuring a stronger emphasis on the need to seek
advance indications from the patient regarding treatment during
the admission interview and tightening the criteria for and supervision
of the use of medical restraint.
86. To conclude, I would like to indicate that, apart from the
shortcomings identified above, human rights are generally well protected,
but with some operational mechanisms that could still be strengthened.
I also note that dualism prevails in Denmark: the European Convention
on Human Rights is the only international human rights convention
which is both ratified and incorporated into Danish law, which is
not the case for other United Nations core human rights conventions
ratified by Denmark. The authorities stressed that the United Nations human
rights conventions are relevant sources of law in Denmark (i.e.
the conventions can be and are indeed invoked before and applied
by the Danish courts and other national authorities.
I understand that this issue was debated
in 2014 by a committee of human rights experts. After a public consultation
process, the former government decided not to incorporate the United
Nations human rights conventions into Danish law. The authorities
are of the view that such incorporation might entail a risk of a
shift in the legislative powers conferred upon parliament to the
courts, and that it was important to maintain the elected representatives’
responsibility for compliance with international obligations. In
this regard, the present government generally agrees with the former
government.
87. I take good note that Denmark continuously pays attention
to the possibilities of withdrawing or narrowing its reservations.
Thus, in 2014, Denmark narrowed its reservation in respect of Article
14 of the International Covenant on Civil and Political Rights (ICCPR).
I
would thus invite Denmark to further promote human rights by incorporating
international instruments, and lifting reservations, as well as
to encourage the authorities of the semi-autonomous Faroe Islands
and Greenland to reinforce their system of human rights protection
in the light of the conclusions of the Council of Europe monitoring
mechanisms.
5. Conclusions
88. Overall, the functioning of
democratic institutions in Denmark complies with Council of Europe standards.
Denmark globally honours its membership obligations to the Council
of Europe. The Monitoring Committee notes that Denmark has faced
one of its most important migration crises, stemming notably from the
Syrian and Iraqi conflicts. Despite tensions related to migration
issues, rising populism and counterterrorism measures taken in the
wake of recent terrorist attacks perpetrated in Denmark, the country
has managed to remain committed to a high degree of protection of
human rights and, overall, well-functioning democratic institutions.
There is overall a high level of trust in the capacity of the democratic
and State institutions to uphold human rights standards. There is
also a genuine “culture of local democracy” which contributes to
a vivid democratic life.
89. The Monitoring Committee has taken note of the specificities
of the Danish political system, with two semi-autonomous entities,
Greenland and the Faroe Islands, which enjoy a high degree of autonomy
and thus bear an important responsibility in ensuring the protection
of human rights. With respect to the application of international
treaties, dualism prevails in Denmark, the European Convention on
Human Rights being the only international human rights convention
which is both ratified and incorporated into Danish law. This could
be seen as an additional challenge, in particular with respect to
the implementation of international human rights instruments, especially
in Greenland and the Faroe Islands: their consent is required to
ensure that these legal instruments can have full effect over the
whole territory. The Monitoring Committee can only encourage all
the authorities concerned to ensure consultations to incite those
authorities to upgrade their standards and allow the lifting of
reservations.
90. In the light of the findings of the monitoring mechanisms
of the main Council of Europe conventions, a certain number of issues
should, however, be addressed by the authorities. The committee
therefore wishes to make the following recommendations to the Danish
authorities.
91. In the field of democracy, the committee welcomes the latest
progress made in strengthening local democracy after the Danish
Municipal Reform launched in 2007 and encourages the authorities
to sign and ratify the Additional Protocol to the European Charter
of Local Self-Government on the right to participate in local government
affairs, in line with
Recommendation
350 (2013) on Local and regional democracy in Denmark of the Congress
of Local and Regional Authorities;
92. In the field of the protection of human rights, the Monitoring
Committee invites the Danish authorities to:
- while taking note of the steps taken to limit restrictions
to fundamental freedoms and procedural guarantees, review and upgrade
the legal framework of the Danish counterterrorism legislation (including
the Danish Aliens Act and the Administration of Justice Act), so
as to find the right balance between effective measures and protection
of fundamental rights, and ensure that current and future legislation
complies with human rights standards;
- ensure that the provisions of the Aliens Act and the Administration
of Justice Act dealing with the expulsion and deportation of foreign
nationals on “national security grounds” for their suspected involvement
in terrorism-related activities, comply with Denmark’s obligation
to provide due process and equality of arms;
- ensure that the newly created group of researchers inquiring
about the Danish military engagements in Kosovo (1998), Afghanistan
(2001) and Iraq (2003) is able to complete and finalise the work
undertaken by the Iraq–Afghanistan Commission of Inquiry (which
was disbanded in 2015), to determine the liability and responsibility
of the Danish forces under international law, to draw lessons from
this work and further inspire preventive measures based on the findings
of the Iraq–Afghanistan Commission of Inquiry;
- ratify Protocol No. 12 to the European Convention on Human
Rights;
- in the light of the recommendations issued by ECRI and
the Commissioner for Human Rights, ensure that the amendment of
Article 266.b of the Penal
Code (which would limit the criminalisation of insulting and degrading
speeches to statements leading to disturbance of the public order)
complies with Committee of Ministers Recommendation No. R(97)20
on hate speech, so as to ensure sufficient and effective protection
against hate speech, and avoid the worsening of the climate of public
debate in Denmark and increased polarisation of society;
- while stressing that the media are independent, engage
in a dialogue with professional media organisations about possible
measures to be undertaken in the light of ECRI’s recommendations
about the image of Islam and Muslim communities conveyed by media;
- following the recent adoption of restrictive asylum and
immigration laws, and welcoming recent initiatives undertaken to
align the legislation with international rulings, ensure that laws
and practice fully comply with Denmark’s obligation to uphold refugee
protection standards, in particular to further protect children’s
rights taking into account the best interest of the child, including
on family reunion issues, and in line with the European Convention
on Human Rights and the United Nations Convention on the Rights of
the Child;
- make the necessary legislative changes to implement Recommendation
CP(2016)4 of the Committee of the Parties and ensure full implementation
of the Council of Europe Convention on Action against Trafficking
in Human Beings;
- further to the ratification in 2014 of the Istanbul Convention
on Preventing and Combating Violence against Women and Domestic
Violence, develop and adopt a comprehensive action plan to prevent
and combat rape and other forms of sexual violence, in line with
the Istanbul Convention.
93. In this respect, the Monitoring Committee:
- welcomes the initiatives undertaken
by the Faroese authorities since 2011 to prevent and eradicate domestic
violence, violence against women and sexual abuse, and welcomes
the announced revision of the Faroese Criminal Code which should
strengthen the provisions on rape and other forms of sexual abuse
in all circumstances, including within marriage;
- appreciates the initiative taken by the Danish Government
to engage a dialogue with Greenland and the Faroe Islands and urges
all stakeholders to create the conditions that would allow the lifting
of the reservations to the main human rights conventions, including
the Istanbul Convention and the Convention on Action against Trafficking
in Human Beings and, more generally, to consider those national
monitoring mechanisms which could be extended to these entities;
- welcomes, in Greenland, the creation of a Greenlandic
Council for Human Rights in 2013, and the extension to Greenland
of the mandate of the Danish Institute for Human Rights in 2014;
- encourages the Danish authorities to strengthen the functioning
and competence of the Danish Institute for Human Rights with a view
to ensuring that the resources put at its disposal correspond to
its expanded mandate.
94. In the field of rule of law, the Monitoring Committee welcomes
the announced creation of a working group to carry out a comprehensive
review of the legal framework in the Faroe Islands, which should
include the amendment of the Faroese Administration of Justice Act
– which is expected by the Faroese authorities – to amend the provisions
on pretrial detention and ensure their compliance with Council of
Europe standards and which should establish an independent police
complaints mechanism.
95. The Monitoring Committee praises the excellent scores of Denmark
in the Corruption Perception Index published yearly by Transparency
International. Denmark ranks first for the fourth year in a row,
which reflects a very low perception of corruption by the population
and an overall high trust in the oversight institutions. The committee
notes that a Committee of Experts on the Transparency of Party Funding
produced a report in 2015. It thus invites the Danish authorities
to strengthen the legal framework in the light of the proposals
made by this expert committee and the recommendations made by GRECO,
and in particular to:
- initiate
the expected reform in the field of transparency of party funding
without further delay and to ensure its compliance with the relevant
Council of Europe anti-corruption standards and GRECO’s recommendations;
- ensure that small facilitation payments – as a form of
an “undue advantage” – offered to foreign public officials (and
officials of international assemblies and courts) fall within the
scope of the criminal code;
- consider the drafting of a code of conduct, and complete
the set of measures required to prevent corruption among judges;
- ratify the Council of Europe Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime and
on the Financing of Terrorism (revised) signed in 2012.
96. The committee also encourages the Danish authorities to ratify
the European Social Charter (revised) (ETS No. 163) which they signed
in 1996 and the Additional Protocol to the European Social Charter
Providing for a System of Collective Complaints (ETS No. 158) signed
in 1995.