PENALTIES

Question: W hat penalties, both principal and additional,

are laid down f o r such violations?

3.7.1. Punishments

Danish law has three types of ordinary punishment: imprisonment, simple detention, and fine (see Arti­ cle 31 of the Criminal Code). Fines are normally fixed as daily fines in convictions for offences against the Criminal Code; in most other cases, lump-sum fines are used.

Where the courts find it necessary that a penalty should be executed, the terms of the sentence must provide that the question o f the fixing of the punish­ ment be suspended and, after a probationary period,

remitted. If it is regarded as being more appropriate, the court may fix the penalty and decide that the serving of it be suspended and, after a probationary period, remitted; this only applies to fines, simple detention or imprisonment (see Article 56 o f the Criminal Code). Within administrative criminal law, fines are used in by far the greatest number of cases, or possibly simple detention. Suspended sentences are not used very frequently outside the area of the Criminal Code.

In this connection it should be stressed that there are very great differences in the level o f penalties between European countries. Comparing penalties across country borders is therefore most awkward; it is better to attempt comparisons with similar crimes on a national basis.

The said sanctions may be combined. Firstly a court ‘may decide that a part of the deserved punishment, not exceeding three months, be served immediately while the rest of the sentence be suspended. In such cases, an immediate sentence of simple detention may be used even though this type would not otherwise be prescribed for the offence. Fines may be imposed in conjunction with a suspended sentence even though they would not otherwise be prescribed for the partic­ ular offence in question’ (Article 58 of the Criminal Code). Such a combined conviction is used in various situations. Depending on the circumstances, one such situation may consist in the perpetrator having com­ mitted an acquisitive offence which, according to judicial practice, would result in a suspended sentence but also having violated a separate act which, accord­ ing to judicial practice, would result in a fine or in unsuspended simple detention.

There is also a second type of combined conviction. Where the perpetrator obtained or intended to obtain, through his offence, a gain for himself or another, fines may be imposed as a supplementary punishment to other forms of penalty (see Article 50 of the Criminal Code). IN many ways this sanction is remin­ iscent o f confiscation of profit (see below). It differs from confiscation in that a fine may be imposed even though no profit was achieved (for instance in the case of attempt) or even where the amount of profit cannot be established with sufficient certainty. A supplementary fine may (contrary to confiscation of profit) be enforced through a threat o f imprison­ ment;

In practice this supplementary fine is of special impor­ tance in regard to violations of certain separate statu­ tory provisions where judicial practice on sentencing leaves a choice between a very large fine or a brief term of imprisonment. By combining imprisonment or simple detention with a fine, one may achieve the purpose aimed at in imprisonment and at the same time ensure, through the supplementary fine, that the person convicted does not achieve a financial benefit on account of the fact that the act was too severe to be punished exclusively through a fine.

The most distinct example is found in the criminal provisions of tax law. Where tax fraud has been intentional the fine is normally set at twice the amount of tax evaded (where a case is settled by an agreed fine). Where the amount of tax evaded exceeds D K R 100 000, the case is submitted to court and the penalty may be the deprivation of liberty. In this case a supplementary fine is inflicted over and above the deprivation of liberty, be it brief or extensive. A typical example is a judgment given on 20 February 1991 by the High Court for the Western District: a man had reported that he was moving to France but actually maintained his Danish residence and Danish income. In this way he had evaded payment o f taxes to the tune of D K R 375 000 (ECU 47 000). He was penalized by 60 days’ imprisonment, a supplementary fine of D K R 375 000 and payment of the tax to the amount of D K R 375 000.

A supplementary fine has, however, also been applied in relation to other types o f criminality such as traffic in pornography.

As regards children, insane persons, etc., other reac­ tions are substituted for these penalties, but this aspect is not considered here. N or do we go into the subject of ‘safe custody’ which may be applied in relation to persons who ‘pose an obvious danger to the life, body, health or liberty of others’ (Article 70 o f the Criminal Code).

Besides the main sanctions mentioned, there may also be other legal consequences of a punishable act (see also Chapter 9 of the Criminal Code). The two most important ones are disqualification and confiscation.

3.7.2. Disqualification

The main rule of Danish law is that a punishable offence shall not involve the suspension of civil rights, including the right to carry on a business under an ordinary licence or a maritime licence. For 40 years, a fundamental principle of Danish criminal law has been to provide the best possible conditions for reintegrating the offender into normal society. In this connection, it is of vital importance that the number o f positions whose holders are required to be of particularly impeccable character should be reduced as much as possible. (The position o f judge is an example of a position where morals are still a decisive element.)

Consequently, it is only permissible to ‘debar (a person) from a business requiring a special public authorization or permission if the offence committed carries with it an obvious risk of abuse of the position or occupation concerned’ (Article 78 of the Criminal Code). If the person is already engaged in the work in question he may ‘on conviction of a punishable offence, be deprived of the right to continue to carry on the business concerned or to carry it on in certain forms if the offence committed carries with it an

obvious risk of abuse of the position’ (Article 79(1) of the Criminal code). These rules are for instance applied to doctors who have committed sexual offences involving their patients; certified auditors who have contributed to tax fraud of a client; and real estate brokers who have committed embezzlement and breach o f trust. It is, however, essential to stress that the disqualification should in no way be automatic in such situations; disqualification always presupposes evidence of a concrete and substantiated risk of future violations of the law within the business.

Free access to start a business is a fundamental principle of Danish business law. Consequently, there are only few businesses which may be excluded through the said provisions. Therefore, Article 79(2) of the Criminal Code contains a provision which may be used in relation to other forms of business, pro­ vided, however, that this is ‘warranted by special circumstances’. According to the rule, a person can be deprived of his right to be an original subscriber to a joint-stock company, or to be a manager or board member of a joint-stock company, or in a company or association presupposing a specific public confirma­ tion, or a foundation. On the other hand one cannot, for instance, deprive a person o f the right to own stock or to exercise a dominating influence in a joint-stock company.

The provisions of the Criminal Code are supple­ mented by specific rules in separate legislation regard­ ing such subjects as passports, driving-licences, instal­ ment purchases, hunting, animals and pets, electri­ cians, civil servants, second-hand dealers, and pawn­ brokers. There is also the possibility of ineligibility for EC-based subsidies in the case of fraud. N ot all of these rules are identical to the provisions of the Criminal Code.

Regarding existing rules on the exercise of business, it appears as a characteristic feature that in certain areas special conduct is required (for instance, judges and ministers of the State church), while there are other areas where special qualifications are required (for instance, electricians). Within administrative criminal law, the latter areas are of greater relevance than the former ones. In this area, there may exist a special authority for revoking an appointment, grant or licence in situations which would not come under Article 79 of the Criminal Code. In general, the possibility of revocation exists only in situations where there is reason to assume that the person in question would not in the future exercise his activity in an appropriate manner. Judicial practice is quite

strict vis-a-vis the administration when it comes to

upholding an administrative revocation. This appears, for instance, from judgments regarding an authoriza­ tion for a taxi service or for the conveyance of goods. It appears doubtful whether any revocation may take place in any circumstances without an act explicitly so authorizing. At any rate there is no doubt that a revocation which constitutes a major restriction on

the exercise of a business will be subject to a strict assessment on the basis of considerations o f propor­ tionality.

3.7.3. Confiscation

Confiscation may take place under Articles 75 to 77a of the Criminal Code.

The proceeds gained from any criminal act, or a sum equivalent thereto, may, either wholly or in part, be confiscated. Where the amount has not been suffi­ ciently established, a sum thought to be equivalent to the proceeds may be confiscated. Besides this confis­

cation of scelere qvcesita one may confiscate various

objects: (1) objects which have been used, or were

intended to be used in a criminal act (instrumenta

sceleris); (2) objects produced by a criminal act (prod- ucta scleresis); and (3) objects with respect to which a criminal act has otherwise been committed (including corpus delicti)', see, for further details, Article 75 of the Criminal Code. The wording of this provision is so broad that any object having a connection with a crime may be confiscated. Article 77a furthermore authorizes confiscation ‘where it must be supposed that objects would, because of their character in the light of other existing circumstances, be used in a criminal act, ... if that is regarded necessary for the prevention of the criminal a c t’.

While the proceeds may always be confiscated, confis­ cation of objects presupposes that the confiscation ‘must be regarded as necessary in order to prevent further offences, or is warranted by special circum­ stances’.

The Criminal Code contains a number of provisions regarding evidence, confiscation from third parties, confiscation o f substitutes, etc. These subjects are not included in this presentation, nor the complex ques­ tions of interpretation which arise, for instance in defining the concept ‘proceeds’.

According to Article 2 of the Criminal Code, the provisions may be applied in relation to offences against the Criminal Code as well as against separate legislation. Where objects are involved which serve no legal purpose for the perpetrator, confiscation is a matter of routine. This applies, for instance, to narco­ tics, arms and illegal motor parts for the tuning of mopeds. In both administrative and judicial practice, a variety of customs of quite differing natures has evolved and confiscation is applied almost without exception in certain areas, particularly in the case of recidivism or under other objective criteria. This applies for instance to violations of regulations within the area of saltwater fisheries (proceeds, nets and catch); to violation of the rules.on opening hours of shops (stocks of goods and proceeds); and to profes­ sional smuggling (boats and cars). In other areas, for instance in the area of traffic offences, confiscation is

a rare phenomenon used only in very extreme situa­ tions.

An example can be found in a judgment of the High Court for the Eastern District reported in UfR 1982, p. 749. A joint-stock company, its managing director, and the company’s chief cellarman had blended 925 000 litres o f French wine and furnished the wine with labels corresponding to the most expensive of the wines blended. Thereupon they sold the wine to consumers and obtained a profit of D K R 1.1 million (ECU 137 000). They were convicted of violation of the Act on Administration of the EC M arket Organi­ zations for Agricultural Products (see the regulations on wine) and for violation of the Danish national rules on false labelling. The joint-stock company was fined D K R 100 000 (ECU 12 600), and the entire proceeds were confiscated. The managing director was punished by simple detention for 30 days. The chief cellarman was punished by a suspended sentence of 30 days’ simple detention and a supplementary fine of D K R 3 000 (ECU 380).

3.7.4. Penalties outside criminal law

Basically, this review deals with the reactions found in that part o f Danish criminal law which is of special significance within the ‘administrative criminal law ’. It should, however, be stressed that other parts of the legal system offer significant possibilities of securing the desired and practical situations (see below). In a number of cases, a special permit is required before a business may be commenced. If so, all types of conditions may be checked and this opens up the possibility of heightening a certain level; see, for instance, the conditions for authorizing an electrician, referred to above. Under certain conditions a permit of this nature may be revoked (see above). In certain areas a special authorization is also needed to sell specific goods; for instance, certain pharmaceuticals may have to be approved prior to sale.

In certain situations an authority may deprive a business of its privileges where they have been abused. The customs authorities may for instance deprive a business of its rights to credit; see Article 91 of the Customs Act (No 610) o f 14 October 1988: Where the licensee (who has the right of private storing without payment of import duty) or his employees grossly or repeatedly violate the provisions applicable to cus­ toms control, storage, or production’ of goods for export etc., the customs authorities may revoke the licence (Article 19 o f the Act on Administration of the EC M arket Organizations for Agricultural Prod­ ucts).

Furthermore, there are other non-criminal sanctions or reactions. The most important one is the possibility of applying periodic (daily) fines (‘ Zwangsstrafen or Zwangsgeld’). This may be ordered jointly with a

penalty provided for by the criminal law. A judgment according to which somebody is obliged to fulfil an obligation towards the public may stipulate a periodic fine to be paid to the Treasury as a means of enforcement (see Article 997 of the Administration of Justice Act). This possibility may for instance be used in connection with an order to remove illegal build­ ings or to furnish information.

To some extent the authorities may also use periodic fines on their own. The Tax at the Source Act, for instance, authorizes the use of periodic fines against an enterprise which has not been registered in the proper way (see Article 85 o f the Withholding Act). In the same way, the Business and Company Directorate may use periodic fines for the purpose of inducing the board of directors of a joint-stock company to fulfil its obligations towards the Directorate (see Article 160 of the Companies Act).

In certain areas a supervising authority may close an enterprise, change its way of doing business, etc., through orders and injunctions. As examples, one may mention the intervention of public health author­ ities against the kitchens in restaurants or the inter­ vention of the national labour inspectorate against dangerous machines, unsecured excavations, etc. Needless to say, claims for damages, etc. within civil law are of major importance. They also play a role within the area of administrative criminal law. Thus compensation for non-payment o f withheld income taxes may be claimed from a person who has acted negligently on behalf of a company even if the com­ pany is not a company involving any personal liability (see statement No 2/1985 from the Attorney-Gen­ eral).

Furthermore, repayment of allowances etc. which have been unduly received may be demanded. If they are not repaid on time, additional interest has to be paid. Unless otherwise prescribed by order, an interest of 1.3% per month computed for each month com­ menced after the expiration o f the payment term is added where an unduly received amount is not repaid prior to expiration of a term fixed by the paying authority (see Article 20 of the Act on Administration of the EC M arket Organizations for Agricultural Products).

Finally there may be a possibility of acts of self-help; for instance, with the assistance o f the police.