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DENMARK AND THE UN CONVENTION ON THE RIGHTS OF THE CHILD
The UN Convention on the Rights of the Child of 1989 was ratified in Denmark in 1991. However, Denmark made an explicit reservation concerning article 40b(v) which says: “Every child alleged as or accused of having infringed the penal law has at least the following guarantees: „.(V) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law.” This article has not been the object of widespread debate but may be challenged on a regular basis. The challenges are not related to the criminal justice system, which respects the basic principles in criminal procedure such as “nulla poena sine lege” and the right to appeal. But the Danish social welfare system is authorized to impose measures on juveniles between 12 and 17 years old as a consequence of suspected crimes without the criminal guilt being tried in court. The most serious measure is that the child is placed in a secure institution under the auspices of the social welfare system without any concent from itself or the parents. This decision is made in the social welfare system but a judge is involved. There is no appeal and the duration of this confinement is not defined beforehand. This measure is to be based on a holistic assessment of the best interest of the child and is not seen as punishment.
Before the Danish ratification of the UN Convention a comprehensive debate took place among politicians and experts about article 37c, saying: “Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances”; The main issue of the debate was the guarantee of separation of children from adults. As the Danish age of criminal responsibility was (and remains) 15 and as the Convention counts an individual as a child until the age of 18 and further as Denmark did not have (and still does not have) a specific juvenile justice system there was (and still is) a risk that children between 15 and 17 years old will be imprisoned with adults.
There were two divergent viewpoints in the debate before the ratification. One the one hand there was the view that individuals below 18 and over 18 should be separated when deprived of their liberty. But on the other hand it was seen as overkill to build a new prison for juveniles. Denmark has a total prison population of roughly 4000 people and only one prison with more than 200 inmates. It would be very costly to build one or more new prisons for juveniles and also very likely that if this would be the solution (a) there would only be one new prison and the consequence of this would be longer distance for visitors to travel and therefore perhaps less contact to parents and others during the prison time and (b) as prison places tend to be in use the existence of a juvenile prison might lead to an increase in the number of juvenile prisoners.
No juvenile prison was ever built and over time it was decided (and to a pretty large degree practiced) to place all juveniles who were supposed to serve in high security facilities in one prison and all juvenile prisoners who were supposed to serve in low security regime in another. These prisons still house a majority of adults but the intention was to concentrate the juveniles in one wing and pay special attention to them.
The juveniles in pretrial custody are in the main transferred to a secured juvenile institution under the auspices of the social welfare system). This main rule is defined in an internal instruction for the prosecutors (Instruction 4/2007 with changes of December 2012 from the superior prosecutor Part 3. (Rigsadvokaten)) but not implemented as a codified legal right for the juveniles.
For illustration of the practical scope of the problem: Per year in the period 2005-2010 there was a daily average of between 8 and 15 juveniles aged 15-17 in the Danish custody (pretrial prisons). For practical reasons juveniles are not concentrated in one or two facilities. The number of juveniles in pretrial in custody (rather than secure social institutions) was unchanged between 2005 and 2010 but in the period 2011-2014 the daily average over each year was between 2 and 3. One explanation would be that the decrease in juvenile crime makes it easier to have access to a place in an institution.
Over the years it has been clear to a small number of people that Denmark is challenging the UN Convention on the Rights of the Child regarding article 37c about being housed with adults and 40b(v) about being suspect and imposed with measures for that reason without having ordinary possibility of appeal. But the topic never really became a matter of debate in the political arena.
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