Submission to the United Nations Committee against Torture in relation to the Committee’s adoption of LOIPR concerning eighth periodic report of Denmark DENMARK 29 January 2018 HELSINKI COMMITTEE ANTI TORTURE SUPPORT FOUNDATION (ATSF) R E T S P O L I T I S K F O R E N I N G Danish Law Association 1 Introduction The Coalition of NGOs in Denmark (the Coalition) is making this submission prior to the Committee’s adoption of List-of-Issues prior to reporting (LOIPR) for Denmark during its upcoming session. The Coalition is composed of the following 18 organisations: • Anti-Torture Support Foundation (ATSF) • Association of Aliens Law Lawyers • Better Psychiatry – National Association of Relatives • Danish Law Association • The Danish Refugee Council • Disabled People’s Organisations Denmark (DPOD) • DIGNITY – Danish Institute Against Torture • The Danish Helsinki Committee for Human Rights • International Rehabilitation Council for Torture Victims • Joint Council for Child Issues • KRIM – National Association • Intersex Denmark • LGBT Denmark • OASIS – Treatment and Counselling of Refugees • Rehabilitation Centre for Torture Victims – Jutland • Refugees Welcome • United Nations Association Denmark • Women’s Council in Denmark In advance of the Committee’s examination of Denmark in November 2015, we submitted a report to this Committee (Alternative Report) expressing concerns that in many areas, improvements were lacking and the recommendations of the Committee, other UN treaty bodies and the European Committee for the Prevention of Torture (CPT)1 had not been implemented. The Committee published its Concluding Observations on 4 February 20162 (COs) with 30 specific recommendations to Denmark – of which four principal subjects of concerns were identified in relation to which implementation was a priority and in relation to which implementation should occur within a year. In response to Denmark’s follow-up report of 9 December 2016, the Coalition submitted its follow-up report in March 2017. In addition, since the last examination in November 2015, Denmark has received several decisions in individual cases in which the Committee concluded that Denmark did not fully 1 Last visit to Denmark was undertaken from 4 to 13 February 2014, see Report of 17 September 2014 (CPT/Inf (2014)). 2 CAT/C/DNK/CO/6-7. 2 implement Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture) – most recently decision of 21 September 2017.3 The lack of implementation of some individual decisions by the Committee related to Article 3 of the Convention against Torture is of concern for the Coalition. We reiterate our concern of lack of progress in legislation and/or practice in various areas and even further restrictions of the rights of persons who may fall within the scope of the Convention against Torture, notably within the following areas (see further below): • The lack of effective protection of the rights included in the Convention against Torture due to Denmark’s lack of incorporation of the Convention into Danish legislation. • The rights of asylum seekers and refugees have been further restricted, including for those living on “tolerated stay” indefinitely. • The use of solitary confinement as a disciplinary measure has increased significantly in the last two years (2016-2017) - even when used for more than 14 days. This is contrary to international standards and the Committee’s recommendation to abolish such use of solitary confinement. • The use of coercive treatment for psychiatric patients, including children, is maintained on a high level – and has increased during the last years - despite the recognition that the use is far too frequent and widespread. We welcome that Denmark has followed up on its commitment to register cases submitted to the Independent Police Complaint Authority that fall within the scope of the Convention against Torture (see below). We would also like to express our concern that Denmark has not yet indicated which of the Committee’s recommendations that will be implemented and no plan of implementation has been submitted by the Danish government to the Committee, as recommended in the Committee’s follow-up Guidelines. Please find below pertinent issues within our areas of expertise that raise concerns in relation to the full implementation of various provisions of the Convention against Torture. We would like to emphasize that the Coalition highly appreciates the on-going dialogue with the Ministry of Foreign Affairs and the moral and financial support provided to civil society in Denmark. 3 CAT/6/61/D/625/2014. 3 Articles 1 and 4 1.Lack of Incorporation of the Convention There have been no changes in Denmark’s position on incorporating the Convention against Torture into Danish law. In 1987 when Denmark ratified the Convention against Torture, it was concluded that Danish legislation and practice was in accordance with the Convention. However, the context has changed over the last 30 years, and Denmark is required continuously to assess whether its international legal obligations effectively are implemented in practice and whether an incorporation of the Convention into Danish law would be required today. We have attached a legal analysis on the consequences of the lack of incorporation of the Convention into Danish law (Annex 1). Suggested issues: o Will the State Party reconsider its position on incorporation? o Can the State Party explain whether the key assumption regarding compliance at the time of ratification is still valid and whether its international legal obligations under the Convention against Torture are effectively implemented in practice and in all areas mentioned in this report? 2.No Criminalization of Torture In its previous Concluding Observations, the Committee again expressed its concern about the absence of a specific crime of torture in the Danish Criminal Code and the Military Criminal Code (COs para. 11). There have been no changes in Denmark’s position on this issue. However, in the view of the Coalition, the absence of a definition of torture and a criminalization of torture remains a violation of Denmark’s legal obligations under the Convention against Torture (Article 4). Suggested issue: o Will the State Party reconsider its position on lack of criminalization of torture? 3.Lack of legislative clarity about Statute of Limitation in Civil Cases regarding Torture On 22 August 2016, the Eastern High Court concluded that a case brought by 23 Iraqis from Basra against the Danish Ministry of Defence related to alleged torture in Iraq in November 2014 should not be barred by the statute of limitation included in Danish legislation – inter alia with reference to the standards of the Convention against Torture (see Annex 2). The Danish Ministry of Defence had argued for the use of the statute of limitation regulation in this case. On 14 June 2017, the Eastern High Court concluded that the normal statute of limitation rules should not be applied in a case related to the due diligence obligations of a local council (Slagelse) in relation to sexual abuse of some juveniles4. As a result of this judgement, the government prepared legislative proposal of 13 June 2017 amending the statute of limitation in cases of sexual abuse. The law is expected to be adopted shortly5. 4 Reference is also made to the judgement of the Eastern High Court of 11 December 2015 regarding children at the institution Godhavn who were subjected to ill-treatment - in which the court concluded that the case was barred by statute of limitation. 5 L 31 that will apply as of 1 January 2018. 4 Suggested issue: o Will the State Party take the necessary legal measures to ensure that civil proceedings related to torture and ill-treatment are not subject to statutes of limitations, as recommended by the Committee in its previous Concluding Observations, para. 17? Article 2 1.Fundamental safeguards In its previous Concluding Observations, the Committee expressed its concern about the implementation of fundamental legal safeguards in all cases upon arrest and during detention and about the lack of a mechanism for monitoring and keeping records of compliance with the relevant regulations (para. 15) (see below regarding asylum seekers). Suggested issue: o Which measures has the State Party taken to implement this recommendation? 2.The use of restrictions on remand prisoners’ contacts with the outside world This issue was raised by the Coalition in its Alternative Report and we remain concerned about the situation for pre-trial detainees who - despite not being sentenced - enjoy less protection in various areas than inmates serving sentences, as recently documented by professor Peter Scharff Smith and Janne Jacobsen.6 Especially we highlight the severe restrictions on remand prisoners’ contacts with the outside world (e.g., visits, letters, and telephone calls) and refer to examples of pre-trial detainees who have been in detention for a year without the right to a telephone call and who are entitled to a short visit of only 30 min pr. week monitored by a police officer. These restrictions make it difficult for pre-trial detainees to maintain contact with their children and other family members. Suggested issues: o Will the State Party explain whether initiatives will be taken to ensure that the above- mentioned restrictions are used only as an exceptional measure based on concrete grounds and only when strictly necessary in the interest of criminal investigation? o How will the State Party ensure that the use of restrictions on remand prisoners’ contact with the outside world is not in violation with the state’s obligations under Article 2 and 16 of the Convention against Torture? 3.Use of Pre-trial Detention Pre-trial detention is regulated in the Danish Administration of Justice Act (Chapter 70). Denmark has traditionally used pre-trial detention more extensively than neighbouring countries, including Sweden and Norway.