禁止酷刑委员会审议丹麦的报告（部分翻译）

禁止酷刑委员会

2015年11月7日

禁止酷刑委员会今天下午结束审议丹麦关于落实《禁止酷刑和其他残忍、不人道或有辱人格的待遇或处罚公约》条款的第六和第七次合并定期报告。

丹麦常驻联合国日内瓦办事处代表卡斯滕·斯陶尔（Carsten Staur）在介绍报告时表示，打击酷刑一直都是丹麦的优先事项。丹麦是酷刑受害者自愿基金的第三大捐赠国，也是一些反酷刑非政府组织的主要捐赠国。2001年以来，单独监禁的使用下降了93.5%；2014年单独监禁的数量仅为36例。独立警方投诉当局处理了警务人员行为相关的投诉，对执勤警务人员的犯罪行为和在警方拘禁期间死亡或受伤的案例进行了调查。国家警察不久之后将引入关于所有警察制服的个人身份编号。关于丹麦参与伊拉克和阿富汗战争情况的调查委员会设立于2012年，但2015年6月选举之后关停了该委员会，因为政府认为委员会所涵盖问题已有足够的审议。 

在随后的互动对话中，委员会专家询问了单独监禁相关规定及其使用频率方面的大量问题。监狱不分离男女是被提出的另一关切问题。还提到了庇护诉求的处理问题，特别是寻求庇护者所在的Ellebaek设施的情况。他们想要了解关于丹麦参与伊拉克和阿富汗战争情况的调查委员会在被关停前的工作结果。其他被提及的问题包括对司法和执法官员的人权和道德培训，处理对警察的投诉，过高的家庭暴力，打击贩运人口的行动以及监察员对私人运营机构的访问。还讨论了丹麦立法未包括人权条约这一事实。

斯陶尔先生在总结发言中对本次参与委员会的机会表示感谢，委员会在互动对话期间提出了几个相关的问题。丹麦期待收到结论性意见，这将是缔约国未来在该领域工作的基础。

委员会为巴黎恐怖主义袭击的受害者进行了一分钟默哀。

丹麦代表团包括来自外交部、司法部、国防部、卫生部、移民、融合和住房事务部以及独立警方投诉当局的代表和丹麦常驻联合国日内瓦办事处代表团的代表。

委员会将在11月18日（周三）下午3点在万国宫第十八号室举行公开会议，继续审议中国的第五次定期报（CAT/C/CHN/5）。

报告

丹麦的第六和第七次合并定期报告在此可见：CAT/C/DNK/6-7。

Presentation of the Report

CARSTEN STAUR, Permanent Representative of Denmark to the United Nations Office at Geneva, said that the fight against torture was a constant priority for Denmark. Denmark insisted on keeping the topic high on the international agenda and it invested substantial resources to ensure that it was fought globally. Denmark was the main sponsor of the draft resolution against torture and cruel, inhuman or degrading treatment or punishment, which was being currently negotiated at the General Assembly. Denmark was also one of the engines of international initiatives to secure universal ratification of the Convention against Torture. Denmark was the third largest contributor to the Voluntary Fund for Torture Victims and the main donor to a number of anti-torture non-governmental organizations.

Denmark had previously provided the Committee with information on the very strict conditions set out by the Danish Administration of Justice Act on the use of solitary confinement during pre-trial detention. The use of that measure had decreased by 93.5 percent since 2001, and the number of solitary confinements in 2014 had been only 36. Since 2011, no person under the age of 18 had been placed in solitary confinement during pre-trial detention. The Danish Prison and Probation Service could decide to place prisoners in solitary confinement, either for punitive or preventive reasons, but placement in a disciplinary cell for punitive reasons could not exceed four weeks. The authorities were also working on reducing the use of disciplinary cells.

Mr. Staur stated that the Independent Police Complaints Authority handled complaints concerning the conduct of police personnel and investigated criminal offences committed by police personnel on duty, as well as cases of death or injury while in police custody. The Authority had observed an increase in the number of complaints filed against police officers to 1,158 in 2014, as it seemed that the population was becoming increasingly aware of its existence. Unfortunately, it was not possible in the current system to tell whether any of the complaints concerned torture or ill-treatment. The delegation was not aware of any cases where police officers had been charged with torture or ill-treatment in line with the Danish Criminal Code. The Ministry of Justice had asked the National Police in 2014 to introduce individual identity numbers on all police uniforms as soon as possible, which should be implemented in several months.

The Commission of Inquiry on the Danish participation in the Iraq and Afghanistan wars had been established in 2012, but had been closed down after the election in June 2015. The current Government believed that the issues covered by the Commission had already been adequately examined. The Military Prosecution Service had initiated an examination in order to assess if the information from the investigations regarding the transfer of detainees in Iraq could form the basis of a criminal investigation. A civil case concerning detention operations in Iraq was currently pending before a Danish court. Since it was a pending case, the delegation could not comment on the case during the dialogue. In any case, the Danish Ministry of Defence was continuously updating its procedures, revising education and training, as well as adapting the organization in order to improve detention operations.

Questions by Experts

ALESSIO BRUNI, Committee Expert and Co-Rapporteur for Denmark, asked which international human rights instruments had been incorporated into domestic legislation and which had not, and what was their current status.

The definition of torture and its introduction as a specific crime were a recurring issue. Denmark maintained that all acts covered by the definition of torture in the Convention were already covered by the existing provisions of the Danish criminal law. Why not make the crime of torture a specific, separate offence to be punished per se?

If an asylum seeker revealed at the time of his detention at the Ellebaek Prison and Probation Establishment for Asylum-seekers that he had been a victim of torture, what measures were taken by those responsible for the institution? Were the judicial authorities alerted? Was it the advice of a nurse which could decide on the detention or not of vulnerable people such as victims of torture? Were substantial improvements in the facility planned?

Could the delegation inform whether a new directive on detainees by the Danish Defence Command was already in force and what its contents were?

More information was sought about the results of the work by the Commission of Inquiry into Danish participation in the Iraq and Afghanistan wars. How had the Government concluded that the Commission was no longer needed? Was there any conclusion on the treatment of detainees transferred by the Danish forces to other forces in Afghanistan?

The Expert raised the issue of diplomatic assurances with the Afghan authorities and asked whether any breaches of the memorandum between the two sides had occurred. What protection existed for minors who were deported from Denmark to Afghanistan?

Had Denmark ever given its consent to renditions of detained persons in cases where there were substantial grounds to believe that such persons would be in danger of torture?

A question was asked on whether Denmark would be able to establish its own jurisdiction over a person alleged to have committed torture elsewhere.

Living conditions in Danish prisons were generally described as satisfactory. The concern remained about the length of solitary confinement, especially for pre-trial detainees. The duration of solitary confinement as a disciplinary measure, which could last for up to 28 days, was described as excessive. The Special Rapporteur on Torture had recommended that solitary confinement over 15 days should be absolutely prohibited.

Would the Danish authorities consider amending the Alien Act by which a court could indefinitely extend the time limits of four weeks of detention of aliens? Was it not excessive to keep an alien deprived of liberty for up to 18 months simply because he did not cooperate with the authorities who had decided on his expulsion?

SAPANA PRADHAN-MALLA, Committee Expert and Co-Rapporteur for Denmark, asked about the training programmes for doctors on recognizing torture. Was there an evaluation programme in place? What steps were taken to establish that a detainee had been tortured?

She said that solitary confinement was still largely used by the prison authorities. Had the Government considered abolishing solitary confinement? Were persons with mental disorders kept in solitary confinement?

Were any measures taken to prevent sexual harassment of women in mixed prisons?

The delegation was asked to provide information on the use of pepper spray.

Could information be provided on the number of complaints and cases opened against police officers? Was there a special investigative mechanism in place?

The issue of violence against women was also raised by the Expert, who wanted to know about the reporting ratio of such cases and the number of cases investigated.

Information was sought about persons with a “tolerated stay”.

Prolonged restraint was reportedly still used in psychiatric hospitals without proper medical justification, the Expert noted and asked for further details.

Were intersex persons still subject to so-called “correction surgeries” and what action was being taken in that regard?

Another Expert highlighted the need to domesticate conventions ratified by Denmark.

When a complaint by a person arrested was made, how were the culprits identified?

Access to a lawyer was not provided to the desirable degree, the Expert noted. People were not always informed of their rights, which should be looked into again.

What kind of lessons were there from the Ombudsman’s visits to privately run institutions, such as social homes, which was an unusual practice?

An update was requested on the establishment of women-only prisons. How many cases had been identified where women prisoners had been coerced into sex or marriage by male sexual offenders?

The Expert asked about anti-Semitic attacks in Denmark and what was being done with the Muslim immigrant community in that regard.

Did Government funding for non-governmental organizations affect their independence?

Were pre-trial detainees kept together with convicted criminals and youth with adults?

A question on ethics training for police and judicial officers was raised by an Expert.

Was there a formal procedure for women inmates to express the wish to be held alongside male detainees, another Expert inquired?

While there was a drop in the overall prison population, there seemed to be an increase in the use of solitary confinement for disciplinary purposes, an Expert noted and asked for an explanation. Were there any plans to lower the maximum permitted duration of it?

Another Expert asked about the implementation of the amendments of the Alien Act and how they had contributed to the protection of aliens.

Was the crime of torture still subject to a statute of limitation of ten years, he asked.

A question was asked about the funding for individualized determinations of asylum claims, the numbers of which were on a significant rise in 2015. Were asylum seekers from Uganda, who were fleeing persecution because of their sexual orientation, sent back and advised to hide their sexuality, as reported by some organizations? How about Denmark’s actions to discourage asylum seekers and refugees coming to Denmark?

The non-separation of men and women in prisons was brought up by yet another Expert, who asked whether any study in that regard had been conducted.

There were reports on high levels of domestic violence in Denmark. What was the status of implementing measures recommended by the Committee for the Elimination of Discrimination against Women?

The delegation was asked to provide details on the State party’s efforts to combat trafficking in human beings, a modern form of slavery. Were there statistics on how many victims of trafficking had obtained a temporary or permanent residence permit?

Replies by the Delegation

On the questions on complaints against police officers, a delegate explained that the Independent Police Complaint Authority had been in place since 2012. It handled complaints regarding conduct by police personnel, as well as cases of injuries and deaths of persons in police custody or during police interventions. It was an independent body, headed by a council which included a high court judge and representatives of the general public. Police officers themselves were not involved in investigations.

The decision on whether to raise criminal charges against police officers lay with public prosecutors. Such charges should follow the same guidelines as criminal charges against others. The Faculty of Law from the University of Copenhagen was conducting an evaluation of the Authority, and its results were expected in 2016.

There had been an increase in the number of complaints against police officers in 2014. Some 651 complaints had referred to the conduct of police officers and 496 to criminal proceedings; 30 cases had resulted in criticism. There had been no scientific inquiry into the reasons for the increase, but it could perhaps be attributed to the growing confidence in the Authority. Preliminary statistics in 2015 indicated a slight decrease compared to 2014.

The Authority had dealt with a number of complaints over the use of pepper spray. As a general rule, the use of pepper spray was not acceptable against a driver or a vehicle in motion, or persons already brought under the control of the police. The use of pepper spray was an issue which the authorities in the future would follow closely.

Concerning the definition of the specific crime of torture in Danish law, the delegation explained that the issue had been thoroughly assessed and advised against. Torture was already sufficiently covered by other provisions of the Danish Criminal Code. It had been introduced as a serious aggravating circumstance for other crimes. Any crime of torture since 2008 would never be timed out, as the statute of limitations had been lifted then. The crime of torture was a wide concept, the delegation stressed.

The State party believed that the incorporation of the ratified international treaties would mean the shift of power from Parliament to the courts. It was up to the elected representatives of the Danish people to enact Denmark’s international obligations. The European Convention on Human Rights, for example, had been incorporated by a specific statute. There was no completely general provision stating that each and every part of the Convention was part of the Danish law; a number of statutes covered many provisions contained in the Convention.

Turning to solitary confinement, the delegation said that there were different forms of this procedure. It could be used during pre-trial detention, if so ordered by a court. Any person arrested and suspected of a criminal act had to be brought in front of a judge within 24 hours or released, and the only exception was applicable to Greenland due to its vast territory. It was possible, under very strict rules, to determine that the person should be confined to a solitary cell. Solitary confinement could be used only when its aim could not be attained through other measures.

In 2013 and 2014, no person had been held in solitary confinement for more than eight weeks. The last time a person under 18 had been confined to a solitary cell was in 2010. In most cases, solitary confinement for adults lasted for only a few days. 2014 had seen the lowest ever use of solitary confinement: only 36 individuals had been sent to solitary cells last year.

The delegation stated that there were several kinds of solitary confinement used both during pre-trial detention and the serving of the sentence, which could be used as either a preventive or a punitive measure. It was acknowledged that it could have very negative effects on the person exposed to it. In two-thirds of voluntary exclusions, the person actually had limited association with a selected number of other persons. The State party had a strong focus trying to alleviate negative consequences for persons involved.

Solitary confinement as a disciplinary measure could be used only if the inmate had used violence against other inmates or prison personnel, tried to escape, or smuggled in prohibited goods. It could not exceed four weeks and most of the time it did not exceed two weeks; for pre-trial detainees, such a measure could not exceed 14 days. In autumn 2015, a partnership had been founded to look into ways of further limiting solitary confinement and identifying alternative punitive actions.

On minors in solitary confinement, the delegation stressed that the age of criminal responsibility was 15 in Denmark. Most juveniles between the age of 15 and 17 were not sentenced to prison at all; they were often given community service sentences instead. The relatively few juveniles who got prison sentences served them at home, with electronic tagging, or in juvenile institutions. In 2014, there had been only nine juveniles in penitentiary institutions. When a measure of disciplinary solitary confinement was considered absolutely necessary, particular attention was paid to the juvenile by the prison staff. The partnership would also look into the treatment of juveniles.

Regarding the Commission of Inquiry on the Danish participation in the Iraq and Afghanistan wars, the delegation said that a political decision had been made to close that body. The issue was still being debated in the Danish Parliament, as some parties were proposing the re-establishment of the Commission. During the work of the Commission, two generals had received disciplinary sanctions for misinforming Parliament about the number of detainees in Iraq, who had been more than 500. In the initial period of Danish engagement in Iraq, there had been no appropriate system of registering detainees. In another case, an Afghan citizen detained in Afghanistan and transferred to United States custody claimed that he had been tortured there; the case had been concluded in favour of the Ministry of Defence. There were no military courts in Denmark, the delegation informed.

There was one currently ongoing case, in which 23 Iraqi citizens, under the Danish torture law, were claiming to have been tortured. The delegation could not further comment at this stage.

Turning to immigration issues, a delegate said that all new asylum seekers were offered medical screenings. As a general rule, those who stated to have been suffered torture would be offered an additional consultation. The Danish Red Cross and the Danish Immigration Service provided counselling for asylum seekers with psychological traumas. The background of the asylum seeker was taken into consideration when addressing his claim and the person was given the benefit of doubt. Being identified as a victim of torture did not automatically mean the person would be granted asylum, as a whole range of factors were taken into consideration.

A detained person needed to be presented to a court within three days. Legal counsel was assigned to the detainee. Detainees would always be informed of the reason of their detention in a language they understood, said the delegation. The maximum period of detention pending deportation stood at six months. Currently, 73 persons were detained at the Ellebaek facility; there were currently another 1,350 asylum seekers whose claims had been rejected. Some 600 to 700 asylum seekers were currently accommodated outside of the asylum centre.

When victims of trafficking were identified, social workers were assigned to them, and the Danish Centre against Human Trafficking would provide counselling to them, which would cover their rights and obligations. A 30-day reflection period was given to the victims to decide on whether to cooperate. Relatively few persons were repatriated to their countries. Residence permits were not granted only on the ground of the person being a victim of human trafficking. If the person applied for asylum, he or she would be granted procedural stay while their case was being considered. In 2010, two victims had been given residence permits; four in 2011; one person in 2013 and two victims in 2014.

The pillars of the national anti-trafficking plan included prevention in both Denmark and abroad, prosecution and building partnerships. Work was continuously undertaken to include new stakeholders in the process.

Most aliens on tolerated stay reported to the police on a daily basis, which was believed to be in line with Denmark’s international obligations. Every six months Danish authorities assessed whether the conditions for non-refoulement had changed. Aliens on tolerated stay were not discriminated against, in the view of the Danish Government.

The average handling time of asylum requests stood at five months. Employees processing such requests were doing overtime and more staff members were being recruited in order to process the ever increasing number of applications. Nonetheless, the processing time was expected to increase. Applicants had the right to legal assistance during the application process.

Aliens could not be returned to their country if there was a danger of torture or ill-treatment. The safeguard against refoulement was thus absolute, stressed the delegation. A gay asylum seeker would not be sent back to his country where he would be in danger for that reason.

A delegate said that the Psychiatric Act read that coercive measures against patients were the last resort. A patient had to be given sufficient time to consider possible procedures. The Government was striving to have coercive measures reduced by half until 2020; a number of partnerships existed in that regard. A detailed protocol had to be followed every time a patient was subjected to coercive measures. An expansion of treatment capacities was also being worked on.

Diagnosis of transgender persons could only be carried out in specialized mental health facilities in the capital region. That highly specialized function was complex, rare and required large resources. Such persons could be treated with hormones if they so chose.

In rare cases, there were doubts about the sex of the child, a paediatrician would carry out a detailed investigation, in close cooperation with the child’s parents. If the child had a chromosome variation, he or she had to be treated throughout the childhood. A medical treatment could be carried out only with informed consent; an intersex person of 15 and over would need to give his or her consent, in consultation with their parents, if any medical surgery was to be undertaken.

Police education had an increased focus on human rights; the Danish Institute against Torture provided support in that regard. Police officers were trained to use less forceful alternatives whenever possible; potential bodily harm had to be minimized, as well as potential danger to bystanders. The Danish police had completed a new review of shooting instructions following the terrorist attack in Copenhagen earlier this year. Whenever pepper spray was used, the police officer had to fill in a form and explain the circumstances; the use of pepper spray had gone down by 50 per cent in recent years. Attention was given to police officers’ ethical responsibilities.

In Denmark, there were no prisons solely for women at present, a delegate explained. No political decision had been taken in that regard. There were four correctional institutions in the country where women were typically placed. They could also be placed in custody in all remand prisons. If an inmate wished to serve the sentence with inmates of the opposite sex, that preference would be taken into consideration. In three out of the four prisons, women’s wards were separate from men’s. Facilities in those wards had been improved.

There was no information of female inmates being forced into a sexual relationship or marriage with male inmates. If such a situation were to be detected, restrictions would be imposed on the concerned inmates. Assessment on whether the relationship was voluntary or not was of multidisciplinary nature.

On average, there were only nine juveniles in Danish prisons at any given time. A screening was held before placing juveniles in prisons, to decide where and with whom they should be. Pre-trial detainees were allocated to remand prisons, where some short-term sentences could also be served.

The delegation said that the average time a person spent at the Ellebaek facility was 29 days. In 2014, some 40,000 euros had been allocated to the maintenance of the facility. The purpose of placement in the Ellebaek facility was to ensure the presence of persons before they were expelled.

The Ombudsman conducted a number of monitoring visits to see how public officials took care of inmates; other institutions were also visited, such as social care and residential institutions for juveniles. The Ombudsman thus acted as the national preventive mechanism. The Ombudsman also observed how the police escorted foreign nationals as they were expelled from Denmark.

No legal registration was required to act as a civil society organization. The Government worked with non-governmental organizations in an arms-length manner through a multi-year funding plan. Strategic partnerships agreements were in place in that regard.

Follow-up Questions by Experts

An Expert said that the State party had a full definition of torture as an aggravating factor, but it still did not exist as an offence per se. Why was that not the case?

The European Convention on Human Rights was incorporated in Danish legislation, but other treaties were not. Human rights treaties then had a limited impact on society as they were not incorporated in domestic law and could not be invoked in judicial proceedings, which was seen as a big limitation.

Was there a distinction between civil and criminal proceedings when it came to the statute of limitations?

The Expert said that it seemed that the detention of aliens could be renewed every four weeks ad infinitum, which was a problem. Limits should certainly be placed there.

The Ellebaek detention facility looked like a prison in order to prevent escapes, the Expert noted. There were, nonetheless, ways to distinguish it from jails as persons detained there were not, and should not be treated as criminals.

Another Expert asked whether Denmark would consider totally prohibiting the placement of juveniles into solitary confinement.

Further clarification was sought on the statute of limitations.

Women were more vulnerable and were exposed to more torture and specific violence, which was why the Committee paid particular attention to their condition.

Was the court system in Denmark customized to address the needs of youth and young victims, an Expert inquired? Did child victims face abuse in open courts? Were their names anonymized?

More information was sought about monitoring of the situation of the one person who was in prison in Afghanistan.

What happened to individuals upon the completion of temporary residence of persons in Denmark? How did one move from temporary to permanent status, the Expert asked.

Was the campaign still ongoing to discourage refugees and migrants from coming to Denmark?

The Expert returned to the issue of women and men serving in prison together and wondered if that might lead to a change in paradigm.

Replies by the Delegation

The complete and clear definition of torture existed in the legislation, where it was described as an aggravating circumstance. A crime of torture per se would need minimum and maximum penalties; it was not a simple matter to translate the aggravating circumstance into a crime per se.

International human rights treaties had an impact on individual lives and could be directly invoked in courts, the delegation said, even though they were not domesticated.

The civil statute of limitations would not be changed. One year after a criminal conviction, a victim had the right to bring up his or her claims.

It was the last of the last resorts to send juveniles to prisons. It was a very small percentage of juvenile offenders, as all other alternatives were first considered; those sent to prisons were generally charged with very serious crimes. They were sometimes placed with adult inmates if the only alternative would be solitary confinement.

The delegation said that if a child victim was very young, he would not be questioned in court. He would be questioned in a quiet setting in depth only once and quickly.

It was reiterated that the number of cases of solitary confinement had been brought down by over 90 per cent in 14 years. It seemed impossible that it could be reduced to zero as the State party kept the right to use that provision even for under-18 year olds when necessary. Inmates could appeal a decision on solitary confinement to the court. Solitary confinement did not mean that a person was on his own for 23 hours per day, but rather that there was no contact with other prisons. All sorts of alleviating measures, such as contact with prison staff or priests, were in place.

The Afghan Independent Human Rights Commission regularly visited the detainee originally kept by the Danish forces. The Commission had received some training on how to conduct the monitoring. The military prosecution service worked differently from police prosecutors; it was an independent service, but there were no military courts.

Education on human rights was an integral part of police education, stressed a delegate.
The police had issued a leaflet given to all detainees spelling out their key rights, such as having legal counsel.

For many sentences up to six months, an electronic monitoring system had been put in place so that those found guilty did not need to go to prison; community service was also more and more used as an alternative sentence.

There were occasionally conflicts between detainees at the Ellebaek facility, which was why some groups had to be separated from others, a delegate explained. Detention there had the maximum limit of 18 months.

If there was a suspicion that an asylum seeker was a victim of torture, he would be referred to a doctor with the Red Cross, which dealt with them in cooperation with the authorities.

Advertisements discouraging refugees from arriving to Denmark were no longer published, a delegate informed.

Concluding Remarks

CARSTEN STAUR, Ambassador and Permanent Representative of Denmark to the United Nations Office at Geneva, expressed sincere appreciation for this opportunity to engage with the Committee, which had raised a number of pertinent issues in the course of the interactive dialogue. The fight against torture would remain a high priority of the Danish Government. Appreciation was expressed to the active participation of civil society organizations, the National Human Rights Institution and the National Preventive Mechanism – the Ombudsman.

__________

For use of the information media; not an official record

Follow UNIS Geneva on: Website | Facebook | Twitter | YouTube |Flickr