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Justitsministeriet sendte den 25. august
2003 til Retstudvalgets orientering regeringens endelige
redegørelse til Europarådets Torturkomité om de initiativer, der
blev taget i lyset af komitéens besøg
i Danmark i perioden
fra den 28. januar til den 4. februar 2002. Endvidere sendte
Justitsministeriet
den 23. januar 2004, ligeledes til Retsudvalgets
orientering, komitéens bemærkninger til de danske
besvarelser.
Til orientering
sendes – i 5 eksemplarer – Justitsministeriets brev af dags dato til
Europarådets To r-
turkomité.
/
Ministry of Justice
Law Department
CPT Secretariat
Council of Europe
67075 Strasbourg Cedex
F Frankrig
Date:
Criminal Law Division
Mette Undall-Behrend
Our ref.:
2002-738/3-0102
Doc.:
MUB20641
Slotsholmsgade 10
Phone: + 45 33 92 33
40
E-mail: jm@jm.dk
DK 1216 Copenhagen K.
Fax: + 45 33 93 35 10
Internet: http://www.jm.dk
With reference to
CPT’s letter of 20 November 2003, please find below supplementary
information
and comments from the Danish Ministry of Justice.
First of all, the
Ministry of Justice would like to inform the Committee that on 4
February 2004, the
Minister of Justice presented a bill on the
activities of the police to the Parliament. The new law – if
adopted
– is expected to enter into force on 1 August 2004. Please find
enclosed a copy of the bill.
The purpose of the
bill is to establish an inclusive and up-to-date legislative
framework for the ac-
tivities of the police, including laying
down the fundamental principles for the use of force as part of
the general maintenance of law and order. The main parts of the bill
primarily aim at codifying the
current state of law.
The proposed bill lays down the general purpose and lists the
various tasks of the police. The bill
further regulates
police interference in cases other than criminal prosecution. It
gives a clear legal
basis for the tasks and interferences of the
police in relation to general maintenance of law and or-
der, especially in
relation to children and sick and helpless as well as intoxicated
persons. The bill
expressly regulates detention of intoxicated
persons, including to what extent detention can take
place
in relation to intoxicated persons below the age of 18.
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The bill further
outlines those police tasks that can justify the use of force, and
it lays down general
and basic conditions for the use of force by the
police in cases of criminal prosecution as well as in
other cases. It
follows from the bill that the use of force must be necessary,
justifiable and propor-
tional. The bill also contains rather
detailed provisions on the use of firearms, truncheons, dogs and
gas, and establishes a legal basis for the Ministry of Justice to
issue further regulations on the use of
force by the police.
Specifically regarding
the CPT comments to paragraph 8, the National Commissioner of Police
has
stated that basic and in-service training of
police officers includes comprehensive training regarding
proportionality, including that arrest shall be made as leniently as
allowed by the circumstances.
The training of
police officers concerning the use of force includes topics
such as, inter alia, the
legal
basis for the use of force, conditions for the use of force,
self-defence and the limits of what is
permissible in
self-defence, necessity, forcible means and abuse of power.
With regard to the
Danish comments to paragraph 21, the Committee recommends that
steps be
taken to avoid that medical information placed
in police files exceed what is relevant to custody.
However,
the National Commissioner of Police finds such a system inexpedient,
since it will not
always be clear at the time of the
examination whether medical information can be relevant in con-
nection with
detention. Further, an English translation of Announcement II No. 55
of 27 June 2001
is enclosed.
Regarding the CPT
comments to the Danish comments to paragraph 39, the ministry would
like to
clarify what was said in the previous comments.
As a starting point, remand prisoners are allowed to
receive visits
to the extent allowed by the rules governing order and security in
the remand prison as
well as they have the right to receive and
send letters. However, visits and exchange of letters may
be
subject to restrictions.
Restrictions on visits may, according to
section 771(1) of the Administration of Justice Act, be im-
posed for the sake of
the objective of the detention in custody. As regards exchange of
letters, re-
strictions may, according to section 772(1), be
imposed when the contents could be damaging to the
investigation
or to maintenance of order and security in the remand prison.
Thus, the criteria
to be assessed when deciding whether restrictions should be
imposed regarding
visits and letters in concrete cases often
correspond to the criteria to be assessed by the courts when
deciding whether the person in question should be taken into custody.
Therefore, if, for instance, a
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person is taken into
custody because, due to the circumstances of the case, there are
definite grounds
to presume that the accused may obstruct
prosecution in particular by removing clues or warn off or
influence other persons, this will often
also be a reason to
uphold the control with regard to letters.
Obviously, this does
not mean that the police are exempted from assessing each
individual case.
Furthermore, the specific control of visits and
letters is subject to review by the courts of law, cf.
sections
771(1) and 772(1) of the Administration of Justice Act.
With regard to the CPT
comments concerning paragraph 38, the Ministry of Justice can inform
you
that following the amendment of the
Administration of Justice Act, which entered into force on 1
July
2000, the Ministry of Justice has laid down administrative
rules on the treatment of remand
prisoners held in
solitary confinement by court order, inter alia
by amending the Custody Order and
the circular on
remand prisoners’ right to correspondence by letter and visits. The
amendments en-
tered into force on 1 July 2000.
A copy of Part 25
of the Executive Order of the Ministry of Justice of 6
November 2003 on Re-
mands in Custody (Custody Order) is
enclosed. It appears from this that the rules now also stipulate
that remand prisoners held in solitary confinement by court order
must have a television set made
available free of
charge.
Concerning paragraph 58, the Ministry of Justice
described in its most recent report to the CPT the
health
services provided in the Copenhagen Prisons/the Sandholm Detention
Centre and noted that
organisationally the Sandholm Detention
Centre belongs to the Copenhagen Prisons. The need for
improved coordination of transportation tasks incumbent on the
Sandholm Detention Centre was
also pointed out.
Such coordination would be expected to lead to greater effectiveness,
which would
improve the number of timely transports for
health purposes, such as psychiatric consultations.
The Copenhagen Prisons
have stated that they have now conducted a general assessment
of the
transportation needs of the Sandholm
Detention Centre. The outcome of this assessment is that
various health services, such as psychiatric consultations, X-ray
examinations, dentist appointments,
taking of blood
samples, etc., have now been gathered on specific weekdays at the
Western Prison.
The Western Prison has assumed responsibility
for most of the driving related to health services,
such as
transportation of persons with an appointment with the psychiatric
consultant of the Western
Prison. According to the assessment of
both the Copenhagen Prisons and the Sandholm Detention
Centre,
these changes have led to a better coordination of the
transportation tasks. So far, the new
scheme has been
satisfactory, also in respect of the transportation of inmates with
an appointment
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with the psychiatrist.
The Department of Prisons and Probation will keep itself informed of
devel-
opments to be able to take any steps required in
future.
The CPT noted that it assumes that the level of
treatment of psychiatric patients in the State Prisons
in
Vridsløselille and Horsens will be monitored closely. It is noted as
a matter of form that the level
of treatment of
psychiatric patients in the two prisons has not changed since the
Committee’s visit in
2002.
In relation to paragraph 64, the Ministry
of Justice can inform the Committee that the Prison and
Probation Service has resumed its internal inspection visits – and
has also expanded the fields in-
spected. In 2002-2003,
the casework of four local prisons and the security precautions of
three state
prisons were subjected to an internal inspection.
The inspections of the security precautions were
the
first inspections of the new type. It is expected that also other
types of inspections and inspec-
tions with other
themes will be carried out in the coming years.
Internal inspections
of casework have been planned so that the local prison to be
inspected will for-
ward to the Department a number of concrete
examples of cases that constitute interference with the
inmates’
integrity. These cases will be reviewed to ascertain whether
the casework, reporting and
registration are satisfactory.
Moreover, the Department will have a look at the local prisons’
own
rules for inmates and the actual division of
authority between the prison director and the head of the
individual local prison.
In 2003, security inspections took place
at the State Prisons in Ringe, Vridsløselille and Jyderup.
These inspections were in the form of a pilot test. They will be
evaluated this spring. The experience
gained from this will
be used for a development of the concept of future
inspections. The discus-
sions will be based on general problems
spanning several fields and the handling of such problems,
but are
not a systematic elucidation of local casework and decision-making
routines to identify spe-
cific errors and omissions. A report will
be prepared for each inspection, listing improvements sug-
gested by the
Department. Afterwards the Department will discuss with the
individual prisons how
to follow up on the report.
Regarding the CPT
comments concerning paragraph 92, the Ministry of Justice would like
to inform
the Committee that – as mentioned in the
Danish government’s preliminary rapport - forensic in-
patients who have
been sentenced to be placed in a psychiatric hospital or department,
an institution
or in safe custody will always have a guardian
representative (“bistandsværge”) appointed for him
or her, at the
latest at the time of the delivery of the judgement, cf. section 71
(2) of the Danish Cri-
- 6 -
minal Code and section
3 (2) of Statutory Order No. 77 of 5 February 1999
concerning Guardian
Representatives (Statutory Order No. 77/1999).
Please find enclosed a copy of the Statutory Order.
A forensic in-patient
will as far as possible have a member of his or her immediate family
appointed
as a guardian representative. If this is not
possible, a guardian representative will be appointed. The
guardian
representative shall have the same qualifications as a patients’
counsellor. As mentioned in
the Danish
government’s preliminary rapport, guardian representatives will be
appointed among the
people from the State County Prefect’s list of
guardian representatives, cf. section 2 (1) of Statutory
Order
No. 77/1999. The guardian representatives are entered on the list on
application and are se-
lected among those applicants, who must be
considered especially suited to carry out the tasks in-
volved in the appointment,
including persons with connection to the health, social and
education
sector, cf. section 1 (3) of Statutory Order No.
77/1999. Before an applicant is entered on the State
County
Prefect’s list of guardian representatives, a testimonial is
obtained from the relevant Chief of
Police. Similar
provisions are contained in section 2 (1) and section 1 (3) of the
Statutory Order No.
858 of 21 October 2003 concerning
Patients’ Counsellors (Statutory Order No. 858/2003). How-
ever, a testimonial
must not be obtained from the relevant Chief of Police for patients’
counsellor
applicants.
Persons employed at a
psychiatric hospital or department, an institution for persons with
extensive
psychiatric handicaps etc. cannot be appointed
as guardian representatives for patients at the same
hospital,
department or institution etc., cf. section 1 (4) of Statutory Order
No. 77/1999. The same
provision applies to persons who are
otherwise involved with the working or the administration of
the
hospital, department or institution etc. in question. Similar
provisions are contained in section 1
(4) of Statutory
Order No. 858/2003. Furthermore, employees of the prosecution, the
police and the
Prison Service should not be accepted as
guardian representatives, cf. section 1 (4) of Statutory Or-
der No. 77/1999.
According to section
71 (2) paragraph 2 of the Danish Criminal Code and section
8 of Statutory
Order No. 77/1999 the tasks of a guardian
representative are to keep himself or herself informed
about the patient’s condition and see to that the stay at
the hospital/department, the institution or
establishment,
and other measures are not extended further than necessary.
Moreover, according to
section 8 of Statutory Order No. 77/1999
the guardian representative shall advise and guide the sus-
pect, the defendant
or the convicted about the possibilities of lodging complaints,
including com-
plaints in accordance with the Danish Act
on Conditions for Deprivation of Liberty and Use of
Force
in Psychiatry, as well as the possibilities to apply for
a change or an end to the sentenced
measure. Furthermore,
the guardian representative must assist the convicted in preparing
potential
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complaint letters
and applications regarding changes or termination of the sentenced
measure and
assist during the consideration of these
actions. According to section 9 (1) of Statutory Order No.
77/1999
the guardian representative must visit the convicted as occasion
requires.
Pursuant to section 24 (2) of the Danish
Psychiatric Act and section 10 (2) of Statutory Order
858/2003 the tasks of a patients’ counsellor are to guide and advise
the patient regarding all situa-
tions in connection
with the hospitalization, stay and treatment in the psychiatric
department. Fur-
thermore, the patients’ counsellor must assist
the patient with the institution and implementation of
potential complaints. The patients’ counsellor must as far as
possible be present at the consideration
of the complaint at
the psychiatric complaints board. The patients’ counsellor must
visit the patient
at least once a week and moreover according to
requirement, cf. section 12 (1) of Statutory Order
No. 858/2003.
Pursuant to section 16 (2) a patients’ counsellor will be
disqualified from the list of
patients’ counsellors,
if the counsellor in question has grossly neglected the duties
following from
the appointment, or otherwise appears to be
unsuited for the task.
In this way, the tasks of a patients’
counsellor and a guardian representative are to a large extent the
same.
Yours sincerely,
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Annex
Excerpts of Executive
Order of the Ministry of Justice of 6 November 2003 on
Remands
in Custody (Custody Order)
……
Part 25
Special offers to
remand prisoners held in solitary confinement by court order
Guidance, staff
contact, etc.
Section 82. Remand prisoners
held in solitary confinement by court order must be guided in detail
about the special rights and offers to which,
according to the rules of this Part, they are eligible as
segregated prisoners. To reduce the particular stress and risk
of disturbance of the mental health
connected with solitary
confinement, the staff shall at all times be particularly aware
of whether
remand prisoners held in solitary confinement
need more staff contact, medical or psychiatric atten-
dance, extended
right to visits, etc. Particularly in relation to remand prisoners
subjected to long-
term solitary confinement, the staff shall
be aware of whether this need increases with the length of
the
period in solitary confinement.
Television free of
charge
Section 83. Remand prisoners
held in solitary confinement by court order must be offered a tele-
vision set free of
charge.
Visits, etc.
Section 84.
Remand prisoners held in solitary confinement
by court order must be permitted to
have at least
one visit each week. The duration of the visit may not be shorter
than one hour. Longer
visits must be allowed to the extent
permitted by circumstances.
Section 85.
During continued solitary confinement, remand
prisoners held in solitary confinement
by court order for
more than 14 days must be offered regular and long consultations
with a chaplain,
doctor, psychologist or another professional.
Occupation
Section 86. During continued
solitary confinement, remand prisoners held in solitary confinement
by court order for more than 14 days
must be offered special access to individual tuition and
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