COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF DENMARK
The Committee against Torture this morning began its consideration of the fifth periodic report of Denmark on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Kim Vinthen, Head of the Human Rights Unit of the Ministry of Foreign Affairs of Denmark, said that efforts to facilitate rehabilitation and improve living conditions for victims of torture had been taken a step further as from this year. As a supplement to current health care and traditional rehabilitation efforts, a special scheme, set to run until 2010, would create better conditions for traumatized refugees and their families. A sum of 16 million Danish kroner – almost $ 2.9 million dollars – had been allocated for special projects over four years. The goal was to improve the situation for torture victims, for the whole family, and for children who might suffer from secondary traumas, as the condition of their parents affected their own lives.
Among other new developments in the field, Mr. Vinthen highlighted that, in December 2006 a specific prohibition against torture had led to the introduction of the Defence Command Directive on the prohibition of torture and other cruel, inhumane or degrading treatment or punishment for the Armed Forces. The directive did not fill a vacuum; rather, it compiled Danish Armed Forces regulations on the prohibition of torture into one overarching order. That order would be supplemented by and detailed in directives to international military operations as well as to instructions for processing of personnel in the custody of the Danish Armed Forces. Further to prohibiting torture in all its forms, the directive ordered military personnel who witnessed torture conducted by others to actively engage in discontinuing the maltreatment. In addition, military personnel were obliged to report any acts or omissions they believed to constitute torture conducted by others.
Serving as Rapporteur for the report of Denmark, Committee Expert Claudio Grossman reiterated the Committee's position that a specific legislative provision criminalizing torture was needed in the Danish legal system. It was also the Committee's position that the Convention should be incorporated within the legal framework of Denmark. Denmark was an important role model for the international community as a whole. Also, the law had to be a clear in this matter; if not it could lead to lesser charges being pressed, when a torture charge was appropriate.
Xuexian Wang, the Committee Expert serving as Co-Rapporteur for the report of Denmark, wondered about the fate of the 31 or 34 Afghans transferred by Danish forces to the United States. The Defence Ministry of Denmark had conducted its investigation into that incident in just one week, and without interviewing a single one of those who had thus been transferred. Was any further independent investigation into that matter contemplated?
Other Committee Experts asked questions related to the practice of "tolerated stay" for asylum-seekers who had been rejected but who could not be returned to their countries, including what the legal rights and social entitlements of such persons and their children were; the widespread practice of "isolated" detention, in particular for juveniles; and the treatment of the mentally ill by law enforcement officers.
An Expert commented that, despite the improvements in laws regarding solitary confinement and isolated detention, the Committee's position was that such practices should be abolished, in particular for juveniles.
Also representing the delegation of Denmark were representatives from the Ministry of Foreign Affairs, the Ministry of Justice, the Ministry of Defence, the Ministry of Integration, and the Directorate of Prisons and Probation, as well as representatives from the Permanent Mission of Denmark to the United Nations Office at Geneva.
The delegation will return to the Committee at 3 p.m. on Thursday, 3 May to provide its responses to the questions raised today.
Denmark is among the 144 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
At the end of the morning meeting, the Co-Rapporteur for Follow-Up under Article 19 (reporting obligations), Fernando Mariño Menendez, gave a brief presentation on legislative and judicial action in the United States related to the Committee's concerns, in advance of the receipt of the United States follow-up report, which was due on 31 May. If that follow-up report arrived before the end of the session, the Chairperson said the Committee would review it then.
When the Committee reconvenes at 10 a.m. on Thursday, 3 May, it will begin consideration of the fifth periodic report of Luxembourg (CAT/C/81/Add.5).
Report of Denmark
According to the fifth periodic report of Denmark (CAT/C/81/Add.2 (Part I)), with regard to refugees, the Aliens Act of 1 July 2002 provides for a residence permit to be issued to an alien if he or she risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to the country of origin. The total number of requests for torture examinations made by the Danish asylum authorities varies, but since 2000 has typically been between 20 and 50 a year. In respect of use of force by the police, a new law will enter into force on 1 August 2004, which establishes an inclusive and up-to-date legislative framework for the activities of the police, including laying down the fundamental principles for the use of force as part of the general maintenance of law and order. According to the bill, the use of force must be necessary, justifiable and proportional. The bill also contains rather detailed provisions on the use of firearms, truncheons, dogs and tear gas, and establishes a legal basis for the Ministry of Justice to issue further regulations on the use of force by the police.
Regarding the prison population, there has been a drop in the total number of confinements from 11,200 inmates in 1996 to 8,417 inmates in 2003. However, due to more severe punishments and longer stays in remand prison, the occupancy rate increased in the same period from 89.8 per cent of the prison capacity in 1996 to 96.5 per cent in 2003. This increase is the main explanation of the increase in the numbers of disciplinary punishments. The number of incidents of individual use of handcuffs has increased significantly since 1999 (from 639 cases per year in 1999 to 1,700 cases per year in 2003). This increase is partly due to the rise in occupancy, but also due to a much more frequent use of handcuffs during transportation to prevent escape. In 2003, 91 per cent of the cases of handcuff use occurred only during transportation to prevent escape. The number of cases of use of manual force has remained on a steady level of less than 200 per year. Truncheons and tear gas are very rarely used.
Part II of Denmark's report contains information on implementation of the Convention in Greenland. In 1994, the Danish Government and the Greenland Home Rule set up the Commission on Greenland’s Judicial System to perform a thorough review and reassessment of the entire judicial system of Greenland and on that basis to make proposals for its possibly fundamental revision. The Commission delivered its report to the Danish Minister of Justice in August 2004, and the Government will hereafter, in cooperation with the Greenland Home Rule, decide on the proposals and recommendations in the report of the Commission. The general rules on arrest and detention largely correspond to the Danish rules and are proposed to be continued substantially as they are. However, it is proposed to introduce a right for the court to uphold an arrest for up to three times 24 hours if the detainee cannot be released immediately and the court cannot decide on the question of detention promptly due to the inadequacy of the information available, or for any other reason. The Commission also proposes that the main principles governing the detainees’ situation – in the detention rooms or the prison – should be governed by the Administration of Justice Act in the same way as in Denmark. In addition, the court should be authorized to decide on alternative placement of a detainee. The Commission proposes introduction of the Danish procedural safeguards for detainees in solitary confinement in Greenland. Solitary confinement of detainees in view of the investigation will only be possible in future by prior decision of the court, and the conditions for solitary confinement and its duration must be fixed by law.
Presentation of Report
KIM VINTHEN, Head of the Human Rights Unit of the Ministry of Foreign Affairs of Denmark, said the fight against torture was central to the Danish Government. That was reflected in a number of actions. Each year Denmark tabled the comprehensive omnibus resolution on torture in the General Assembly. Denmark was very open to accommodating any wish from the Committee against Torture in that respect. They also stood ready to pursue that issue in the Human Rights Council, once the Council had decided how to deal most effectively with thematic issues in that new body. Another reflection of Denmark's commitment to combat torture was their role as the chef de file for the implementation of the European Union policy guidelines on torture.
Since their last report was issued, conditions in Danish prisons had been affected by an increase in the number of prison sentences, as well as a rise in the number of longer sentences. That had resulted in a high occupancy rate in the prisons, between 96 and 98 per cent. At the same time, the number of convicted offenders waiting to serve their sentences had accumulated. For many reasons, long waiting periods for enforcement of sentences were unfortunate; it had therefore been a top priority to solve this problem. Various strategies had been applied to achieve this, including the establishment of 550 new permanent prison places between 2003 and 2006; the possibility for certain offenders to serve short sentences in their homes with electronic monitoring (tagging); and the outfitting of a former barracks to serve as a temporary prison for short-term prisoners from April 2005 to March 2006. In February 2006, the backlog had been cleared, and since July 2006, it had been possible to maintain an average daily occupancy rate in the prisons of about 92 per cent, as set out in the multi-year plan of the Prison and Probation Service.
In another development, efforts to facilitate rehabilitation and improve living conditions for victims of torture had been taken a step further as from this year, Mr. Vinthen said. As a supplement to current health care and traditional rehabilitation efforts, a special scheme, set to run until 2010, would create better conditions for traumatized refugees and their families. A sum of 16 million Danish kroner – almost $ 2.9 million dollars – had been allocated for special projects over four years. The goal was to improve the situation for torture victims, for the whole family, and for children who might suffer from secondary traumas, as the condition of their parents affected their own lives. Those new activities supplemented a number of existing initiatives in the field, including support to activity and integration centres, which included activities towards employment, counselling and therapy; and a special project aimed at developing methods adapted for traumatized persons to learn Danish.
In December 2006, the increased Danish engagement in international military operations and parliamentary discussions on the issue of a specific prohibition against torture led to the introduction of the Defence Command Directive on the prohibition of torture and other cruel, inhumane or degrading treatment or punishment for the Armed Forces. The directive did not fill a vacuum; rather, it compiled Danish Armed Forces regulations on the prohibition of torture into one overarching order. That order would be supplemented by and detailed in directives to international military operations as well as to instructions for processing of personnel in the custody of the Danish Armed Forces. Further to prohibiting torture in all its forms, the directive ordered military personnel who witnessed torture conducted by others to actively engage in discontinuing the maltreatment. In addition, military personnel were obliged to report any acts or omissions they believed to constitute torture conducted by others.
Response by Delegation to Written Questions by Experts Submitted in Advance
Regarding the Committee's recommendation that Denmark incorporate a specific crime of torture in its criminal law, it was still the position of the Danish Government that Denmark was fully in compliance with its obligations under the Convention in this regard. Nevertheless, the Minister of Justice had asked the Standing Committee on Criminal Matters to consider the issue of establishing a separate crime of torture in the Danish legal system. The Standing Committee was also asked to consider that question with regard to the military criminal code. The delegation observed that any recommendations of the Standing Committee in this regard would be accepted by the Danish Government.
Responding to criticisms regarding Denmark's use of solitary confinement for prisoners, the delegation stressed that it was the position of the Denmark that the use of solitary confinement had serious implications for an inmate. For that reason, the Government followed the use of solitary confinement very closely. The Standing Committee on Criminal Matters had been given the task of evaluating the amendments adopted in 2000 on solitary confinement in pre-trial detention. Following those amendments, solitary confinements had overall decreased, however, it was true that there had been an increase from 2003 to 2004, and the overall length of the confinement had increased.
In 2006 the Standing Committee had finished its work and submitted a report to the Ministry of Justice. The delegation said that report contained an evaluation of the impact of the amendments adopted in 2000 and recommendations from the committee on how to further decrease the use of solitary confinement in general and regarding persons under the age of 18 years. Based on the report, an amendment was enacted to maintain the decrease in the number of solitary confinements that had been obtained by the amendment of the Administration of Justice Act in 2000, and to further limit the duration of solitary confinement. Regarding persons under the age of 18, the act tightened the rules for initiating solitary confinement by stressing that solitary confinement in these cases must only be initiated and continued if exceptional circumstances made it necessary. Furthermore the upper limit for solitary confinement of persons under 18 years was reduced from 8 weeks to 4 weeks, unless the charge concerned offences against the independence and security of the State (e.g., terrorism).
Turning to information on the measures taken to follow up on the proposals and recommendations of the Commission on Greenland's Judicial System, in particular, regarding solitary confinement, the delegation noted that the report from the Commission on Greenland’s Judicial System came out in the summer of 2004. The Commission proposed, among other things, to build a new institution in Greenland capable of hosting those prisoners who were currently serving their sentences in the Prison of Herstedvester in Denmark. Additionally, the Commission had drafted provisions on solitary confinement of detainees, safe custody, time limits and procedure regarding the mental examination of detainees as well as a provision empowering the Danish Minister of Justice to issue orders on the conditions in detention premises. The Greenland Home Rule commented on the report in May 2006 and, following that, the Danish Ministry of Justice had drafted a new Special Criminal Code and a new Special Administration of Justice Act for Greenland which had been sent to Greenland Home Rule. The Danish Government would consider very carefully the proposal to build a new closed institution in Greenland, as well as the other mentioned provisions as some of the main issues during this process.
Regarding confinement in observations cells, such confinement could only be taken for three reasons: if it were necessary to prevent vandalism; for vital security reasons; or if special observation was required. The measure could only be taken if it was proportionate with the reason for which it was undertaken. The number of cases of immobilization had decreased in 2004 and 2005 as regard to 2003.
As regards the violent riot in the Nyborg prison on 15 February 2004, the delegation said following that riot about 110 out of about 230 inmates in the prison had been affected by restrictions, including revocation of visiting orders, outdoor exercise, association and occupation. The restrictions had been imposed for security reasons. Promptly after the riot, prison management had prepared a plan for gradual normalization of the situation. The prison had appointed a crisis group, which had then implemented a number of initiatives in the subsequent months to overcome stress and the feeling of insecurity among staff as a result of the riot. On 5 March, the five inmates who the prison management believed had had a controlling role in connection with the riot were transferred to other prisons and the coordination committee held a meeting to explain how the inmate regime would gradually be relaxed. By May 2004, the conditions at the prison had returned to normal.
Addressing the issue of "tolerated stay", the delegation said that an alien who could not be granted a residence permit in Denmark because of the provisions regarding exclusion and who – at the same time – could not be returned to his or her country of origin or former residence because of the risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment or of persecution on the grounds set out in the Refugee Convention, could stay in Denmark if he or she wished. In such cases, the alien was granted a "tolerated stay" in Denmark without a residence permit. Aliens living in Denmark on a "tolerated stay" were thus aliens who were, in principle, undesired in Denmark, and who were expected to return to their countries of origin. The Government had therefore introduced a system whereby every six months the Danish Immigration Service had to verify the status of such "tolerated stay" permits to see if those individuals could be returned without risking persecution in their countries of origin. If return continued to be impossible because of the risk of persecution, the alien would continue the "tolerated stay". Indeed, there is no maximum length of a "tolerated stay".
Regarding the detention of asylum-seekers, the delegation stressed that the majority of deprivations of liberty in such cases – and typically those of the longest duration – took place during the phase of the return of an alien, that is, after an alien’s application for asylum had been rejected. Deprivations of liberty of asylum-seekers during the pre-asylum phase were typically of a shorter duration – up to 4 weeks. Deprivations of liberty during the examination of the asylum application by the Danish Immigration Service and the Refugee Board were rare and would typically involve aliens who had been expelled by a court judgment or an administrative decision of the Danish Aliens Act. The examination of such applications was given the highest priority by the refugee authorities.
In terms of the conditions in asylum centres given the recent closing of a number of centres, the delegation stressed that the closing down of asylum centres in Denmark had actually had a positive effect on living conditions and activities in the remaining centres. With the current number of accommodated asylum-seekers and the number of places in the asylum centres there was more room for the remaining asylum seekers. As of February 2007, there are nine asylum centres active in Denmark with a total of 2,374 available beds for 1,719 asylum-seekers, not including the number of asylum seekers living in private accommodation with their spouse or family in other parts of Denmark.
In June 2006, the Government had decided to allocate additional funds of DKK 37.6 million to improve the living conditions in Danish asylum centres, in particular the conditions for families with children. Since then, DKK 47.5 million had been allocated for 2007, and DKK 45.5 million had been allocated for 2008. The additional funds were targeted at the following improvements, among others: creating kitchens for the residents to cook their own meals; improvement of the rooms; mother-tongue teaching of children; expanded after school and summer activities for children; specialized and individually adopted education offers for the children; and an expansion of social activities concerning adult education.
Questions Raised by Committee Experts
CLAUDIO GROSSMAN, the Committee Chairperson serving as Rapporteur for the report of Denmark, observed that, in the realm of protection against torture and ill-treatment, Denmark had been an important voice representing high moral values and that it had taken important initiatives and provided substantial financial support to victims of torture.
Regarding the criminalization of a specific crime of torture, Mr. Grossman reiterated the Committee's position that such a specific legislative provision was needed. It was also the Committee's position that the Convention should be incorporated within the legal framework of Denmark. Denmark was an important role model for the international community as a whole. Also, the law had to be a clear in this matter; if not it could lead to lesser charges being pressed, when a torture charge was appropriate.
Regarding the extraterritorial applicability of the Convention, Mr. Grossman was concerned to know the position of Denmark on this, in particular with regard to military actions in Afghanistan in 2002. Mr. Grossman also wondered if there was a statute of limitations on torture cases in Denmark.
There was a specific crime of torture in the Danish military code, however, three criteria had to be met to establish the commission of such an act: the act had to be in violation of international law; the act had to have taken place during an armed conflict in which Denmark participated; and the act had to have been carried out intentionally. Did that mean, Mr. Grossman asked, that torture could not be prosecuted if it were committed through negligence?
As regarded the practice of "tolerated stay", Mr. Grossman noted in Denmark's written replies that the individuals in that category were categorized as "serious criminals of whom the authorities should be aware – even if they had served their sentences for the offences committed". He wondered if there was an mechanism or process by which they could change the status, in other words, if it was possible for them to be rehabilitated and considered differently by the Immigration Authorities.
XUEXIAN WANG, the Committee Expert serving as Co-Rapporteur for the report of Denmark, wondered about the 31 or 34 Afghans transferred by Danish forces to the United States. What had been the fate of those people? The Defence Ministry of Denmark had conducted its investigation into that incident in just one week, and without interviewing a single one of those who had thus been transferred. Was any further independent investigation into that matter contemplated?
Also, given the possibility of pre-trial solitary confinement, Mr. Wang noted that there was a bill on solitary confinement that was to be adopted in January this year which would shorten terms of solitary confinement for minors. However, for those suspected of terrorism activities, there was no limit on the terms of any solitary confinement as he understood it. In particular in the context of pre-trial confinement, that was a matter of concern.
Finally, Mr. Wang said he would appreciate some details about the riot of last March in Copenhagen, in which a large number of people were arrested. How many people had been arrested, how long they were detained, and had been any complaints against law enforcement official arising out of that incident?
Other Committee Experts asked questions related to the practice of "tolerated stay" and what were the legal rights and social entitlements of such persons and their children; the widespread practice of "isolated" detention, in particular for juveniles; and the treatment of the mentally ill by law enforcement officers.
An Expert commented that, despite the improvements in laws regarding solitary confinement and isolated detention, the Committee's position was that such practices should be abolished, in particular for juveniles.
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