Procedural rules

4.1. COM PETENT AUTHORITIES

Question: W hat authority is responsible f o r detecting

violations and imposing penalties? I f a non-judicial authority is responsible, give a basic outline o f the relevant procedure ( with particular reference to p rotec­ tion o f the defendant’s rights, presum ption o f innocence and the application o f preventive and provisional meas­ ures). Reference to be m ade to A rticle 6 o f the European Convention on Human Rights.

There are very few examples of private prosecution or of prosecution which is contingent upon a request from particular authorities, organizations, or private persons. This means that in practically all instances the police are authorized to investigate a violation of the law and to indict a suspected offender without awaiting permission or a request from other authori­ ties or the victim.

However, the picture is somewhat different in prac­ tice. As mentioned above, the distinction between various branches of criminal law under Danish law is not a legal one but a theoretical one based upon certain very vague criteria. The decisive distinction between police criminal law (traffic law and police ordinances being the main examples) and administra­ tive criminal law is based on what authority is mainly in charge o f legislation being abided by and of offenders being prosecuted. This means that a charac­ teristic feature o f administrative criminal law is by definition that an administrative authority (other than the police) is responsible for detecting violations. It is not just one authority which is in charge of the entire public administration; on the contrary, practically all administrative authorities are obliged as part of their ordinary work to supervise whether any violations take place within their individual area. Within the EC field, a substantial part o f this function is exercised by the Ministry of Agriculture.

In this respect, administrative authorities are struc­ tured in very different ways. Some authorities are organized particularly with a view to detecting viola­ tions or have arranged a great part of their organiza­ tion for this purpose; if so they have special ‘organs of investigation’. This applies for instance to the Auditor-General, the National Labour Inspectorate, and the customs authorities. To a considerable extent these institutions function proactively. Where a viola­ tion has been detected some of these authorities may themselves finally conclude the matter, for instance by means of an agreed fine; this applies for instance to the customs and tax authorities (Article 124 of the Customs Act and Article 20 of the Tax Control Act, among others). If a case cannot be finally concluded by the authority itself, for instance because the viola­ tion is considered so serious that it should result in a custodial penalty or because the accused person refuses to settle with an agreed fine, such authorities

may transfer cases which have been fully or almost fully investigated to the police.

Other administrative institutions carry on their work without giving much thought to the aspect that crimes might occur within the area which it is up to them to handle. This applies for instance to school authorities, the State church, and old age welfare. Should an authority, in one way or another, detect criminal action within its area, it will often feel that the best course of action would be the one adopted by other private persons, namely immediately to report and hand over the case to the police. Considerations regarding the appropriateness of this step will fre­ quently be quite as concrete as where a private person has been the victim of an offence. Once the case is reported to the police it is in all respects handled as a violation within the general or police criminal law. Finally, there are institutions which do not primarily consider themselves investigating organizations but which are in one or more areas so conscious of the possibility of criminal offences that certain routine working procedures have been evolved for the pur­ pose of preventing or detecting them. Administrative authorities o f this type will frequently be fully aware just what material the police need and will therefore collect the material prior to reporting to the police. The authority in question will furthermore often have considered in general terms what cases should result in punishment and what cases should be closed or should merely lead to other sanctions o f a public law or civil law nature. As examples, one may mention child-welfare institutions being aware of sexual abuse, and public assistance offices and unemployment offices being aware of fraud.

Where a violation has been established or is suspected the administrative authority which has detected the violation much first decide whether it should or could close the case itself or whether the case should be transferred to the police (see above).

The prosecuting authority has entered into an agree­ ment with the Ministry o f Agriculture that EC subsidy cases should be reported to the police and then investigated by them in accordance with the following guidelines. Should the recipient of aid not have been entitled thereto, or only have been entitled to part of the aid, the case must be reported to the police in the following situations:

(1) if it appears to be an obvious case of fraud; (2) if one cannot exclude an intention to commit

fraud; and

(a) the recipient has previously received subsid­ ies without being entitled thereto, or (b) the conditions which means that the reci­

pient was not entitled to the entire or part of the subsidy presumably existed already at the time the subsidy was granted; or

(c) the amount unduly received exceeds D K R 20 000 (ECU 2 500); or

(d) the subsidy unduly received has been paid for more than one year.

(See statement No 2 of 29 January 1991 by the Attorney-General.)

The essential problem is what investigating measures the authorities are authorized to engage in. The

provisions on evidence, editio, search, taping of tele­

phone conversations, apprehension and custody are general. This means that it makes no difference whether the offence is theoretically categorized as belonging to the general criminal law, the police criminal law or the administrative criminal law. Reviewing the conditions falls outside the scope of this report. Suffice to say that a general principle of proportionally applies which, according to legislation and judicial practice, means that measures o f investi­ gation which involve a considerable infringement can be taken only if there is a possibility of imposing a custodial sentence, possibly of substantial duration, as a penalty for the offence. For that reason part of the investigating measures cannot be applied within most of administrative criminal law, since the traditional sanction is merely a fine.

Another limitation upon investigation follows from the right to abstain from self-incrimination. This does, however, lead to complex problems o f delimitation within administrative criminal law. A number of administrative institutions may demand that under penalty of the law the party checked shall provide information on his own situation and that of this enterprise and that he shall, likewise under penalty of the law allow the authority to inspect technical book­ keeping and other conditions. This authority, which has been given to the National Labour Inspectorate, the customs and tax authorities, the public health authorities, etc., goes far beyond the authority given to the police. So long as there is no reason to assume that anything wrongful has occurred, this gives rise to no basic problems. But under Danish law it is unclear whether the police, having commenced their investiga­ tion, can obtain the assistance o f an administrative authority for the purpose of gathering information to be used during a criminal action. It is likewise uncer­ tain whether the administrative rights of control are suspended the moment the administrative authority has its suspicion aroused, makes accusations or requests that the party be indicted. It remains a moot point whether Danish practice is compatible with the demand of ‘ fair trial ’ of the Human Rights Conven­ tion.

See below on agreed fines.

There appears to be no conflict between the European Convention on Human Rights, Article 6, on the one hand, and Danish legislation, judicial and administra­ tive practice, on the other hand. Under Danish law the administrative criminal reaction is practically

always an agreed fine which will be submitted to the ordinary criminal courts if the accused person does not explicitly accept it. If submitted to court, the general rules on protection of the defendant’s rights, presumption of innocence and preventive and provi­ sional measures apply, even if action within the area of administrative criminal law is involved. It should be noted in particular that revocation or suspension by the authorities of an authorization to exercise a special business or to continue a financial activity is in general subject to judicial review. Parking levies which are not paid are collected through distraint, which has to be endorsed by the court. In a few limited areas an administrative institution may impose a fine which cannot be reviewed by the courts; this applies for instance to the Board of Auditors, where the chair­ man, however, is a judge (Article 19 of the Certified Auditors Act (No 56) of 19 January 1989) and the Disclaimer Board where the chairman is a Supreme Court judge (Article 10 of the Press Act; this provi­ sion is expected to be repealed during the spring of 1991).

4.2. GROUNDS O F APPEAL

Question (first part): Is it possible to appeal against a

decision by a non-judicial authority to impose an admin­ istrative pen alty in the criminal, adm inistrative or civil courts?

There are no special administrative courts in Den­ mark.

As mentioned above, an administratively imposed criminal penalty is practically always accepted by the accused person himself. Otherwise it cannot be imposed at all.

Should an accused person regret his acceptance within a short period, he will frequently be allowed to withdraw it. As far as taxation is concerned it is a firm practice to allow withdrawal for a period o f six months after an agreed fine has been settled (circular of 1 October 1990).

Otherwise special provisions on judicial review will often exist. In the area o f customs there is — over and above the criminal provisions applied by the ordinary courts and the provisions on agreed fines which are used by the customs authorities — also a rule regard­ ing the customs authorities imposing a fine. This procedure may be applied against persons serving on board ships in foreign trade and against persons who are not residents of Denmark. In these situations the party in question may demand that the customs authorities submit the case to the courts (Arti­ cle 124(2) of the Customs Act).

Finally, it follows from Article 63 of the Constitution that the courts have general jurisdiction to review the

limits o f administrative authority; the very extensive literature on the subject is not taken up in the present context, but it should be stressed that this review is relevant in relation to the decisions mentioned above regarding the revocation of permits etc.

Question (second part): I f so, what m ay constitute

grounds fo r an appeal (points o f law only or questions o f f a c t also)? What rules o f procedure apply and is it possible to appeal against a decision taken by the judicial authority?

In general, one may say that the reviewing court may rule on questions of fact as well as on points of law. Cases are submitted to the municipal court as a general rule, and the court will rule on both the facts and the law following the general rules on criminal procedure. Since cases regarding administrative crimi­ nal law will normally be fairly simple procedures resulting in a fine, proceedings will in most cases take place in the summary fashion prescribed for policy cases.

The basic position of Danish law is that any person indicted has a right to have his case tried by two court instances. In police cases the person indicted may, however, appeal only where the penalty imposed is more than 10 daily fines or a fine of more than D K R 10 000 (ECU 250) or confiscation of objects having a higher value or other consequences of public law (Article 962 of the Administration of Justice Act). It should be noted that Denmark has entered a reservation on Article 2 of the Seventh Protocol to the European Convention on Human Rights.

4.3. PROCEDURES FO R SETTLING OR CO M POUNDING CASES

Question: Are there procedures f o r settling or com­

pounding cases? I f so, describe the relevant criteria, rules and effects.

The police have a general competence to settle a case by an agreed fine, in accordance with Article 931 of the Administration of Justice Act which provides: ‘Where it is assumed that a violation will not result in a penalty of more than a fine the police chief may, instead of submitting an indictment to the court, indicate to the accused party that the case may be concluded without any legal action if he pleads guilty and is prepared to pay a fine of an amount stated to him within a stipulated term which, upon his request, may be extended’. A similar rule applies to confisca­ tion.

Identical rules apply in relation to the Ministry of Agriculture’s administration of the EC market organi­ zation (Article 29 of the Act) and to the customs and tax authorities within their respective fields (see above).

In practice the authority sends a letter with a very brief description of the offence and a reference to the provisions which allegedly have been violated. A postal cheque form is enclosed. If the amount is paid the case is closed.

This is not a case of plea-bargaining. Quite the contrary; the authorities endeavour to have the fine correspond precisely to the amount which would be the result of a court decision.