Home Law International Handbook of Juvenile Justice
POLICING AND JUVENILES
The police carry out all criminal investigation. The police are obliged to take seriously all reports from the public in order to determine if a crime has been committed or not. But the police also have limitations regarding their time and resources and therefor prioritizations must be made. The investigation of some crimes such as bike theft is therefore not of the same priority as the investigation of a bank robbery.
While in principle there is only one criminal justice system in Denmark covering all relevant age groups, on the other hand when a minor is suspected of a crime and investigative steps are taken this presentation of the policing is divided into two parts. The first part involves minors whereas the second part involves individuals above 15.
Even if there is no legal possibility of criminal prosecution of children below the age of 15, criminal offences which are supposed to be committed by children are to some degree included in the investigation of crime. This is because persons above the age of criminal responsibility may be involved in the same offence and they should be held responsible. Furthermore, there may be a need to clarify the total scope of the crime which was committed and to secure that items (for instance stolen goods) are returned to the right person.
The Administration of Justice Act contains a short chapter, chapter 75b, regulating basic questions regarding the treatment of cases where minors are suspected of a crime by the police. The chapter states that in order to prevent a child from being exposed to harmful treatment during the investigation, the parents and the social welfare systems are to be notified and at least one of them are expected to be present during interviews and interrogations by the police. Informing parents and/or social welfare may, however, be postponed if it is a minor crime or if postponement of the information is necessary or in the interest of the investigation. The police are always obliged to inform the social welfare system if there is any reason to assume that the child needs support from social welfare.
As a consequence of the fact that the behavior of a child cannot lead to legal conviction, the possibility of instigating legal inquiries against a child are limited compared to ordinary criminal cases. The legal possibility of detaining a child when necessary in order to clear up a criminal case does exist, but a child may under no circumstances be taken into custody (Instruction 4/2007 with changes of December 2012 from the superior prosecutor. Part 2. (Rigsadvokaten)). Regardless of age and criminal guilt The Danish Police Code, § 5 opens the possibility of detaining a person regardless of age for 6 h in order to prevent public order or personal health from being threatened by the person.
If a child is under influence of alcohol or drugs the police may detain the child. But if the child is not yet 12 years old they cannot be placed in detention and if a child between 12 and 15 is placed in the detention it must be seen by a doctor (The Police Code, § 12).
In addition to the 6-h rule in the Police Code there is a general constitutional protection securing the right for everyone who is arrested to see a judge within 24 h. It is not a defined presumption in the Administration of Justice Law, § 755 that a person must have reached the age of criminal responsibility to be arrested. Consequently children below 15 are not excluded from being arrested. When a child below 15 years old is arrested, they must be kept in an office or the like and may never be placed in a jail/pretrial prison or prison cell. Children will be let out before 24 h as there is no legal possibility for the judge to decide to keep them any longer. They may, however, be handed over directly to the social welfare system and taken into a secure institution.
When a child in Denmark is suspect of a serious crime, it will be noted in the national investigative register. This is a file with no public access. The register is functioning as a tool for the police in their investigation of crimes.
There is no legal possibility for Danish courts to try the criminal guilt of a suspected child. It has been argued in the public debate related to specific cases that such a possibility should be defended as it might prove the innocence of the child, who in spite of their innocence has already been “convicted” by public opinion. It has also been argued that mitigating circumstances related to the crime might never come forward if the case was not tried in court (Storgaard 2004).
In Denmark as well as the other Scandinavian countries Victim-Offender- Programs are available. In several cases minors as well as persons above 15 years may attend Victim-Offender Mediation (VOM) either as victims or as offenders. When the participants are below 18 years old the parents’ consent is needed. In Denmark the police are responsible for organizing and finding relevant cases for VOM and the attendance in VOM (on the offender side) presupposes a confession meaning an explicit realization of the criminal episode. Minors are not directly included in VOM according to the law on VOM but in § 7 of the Law competences are handed over to the Minister of Justice to give additional rules. The number of cases where minors are involved with VOM is very limited and there are no official statistics on that.
Attention to suspects of a young age is required from the police during the investigation process not only as long as a suspect is below 15. The matter of young age still plays a role regarding suspects who are 15 years old but not yet 18 years.
If it is a matter of violation of the Criminal Code or if the offence which the juvenile is suspected of may lead to imprisonment the police are obligated to inform the social welfare system and if possible to invite them for the questioning. An exception to this main rule can be made if the juvenile is apprehended while or in direct relation to the committing of the offence and questioned immediately after the apprehension and provided that the punishment in the concrete case will be no more than a fine (Instruction 4/2007 with changes of December 2012 from the superior prosecutor. Part 3. (Rigsadvokaten)).
If a juvenile between 15 and 17 is arrested the parents must be informed (Instruction 4/2007 with changes of December 2012 from the superior prosecutor. Part 3. (Rigsadvokaten)).
The only difference in the treatment of juveniles below 18 and adults in regard to pretrial imprisonment and solitary confinement during investigation is the limits on the duration of confinement. The limitation rules are in all cases modifiable due to special conditions. But the main rule is that there is a maximum of 6 months of pretrial imprisonment for adults and a maximum for juveniles of 4 months in cases where the maximum prison sentence is under 6 years. If the maximum prison sentence is 6 years or more the maximum for pretrial imprisonment is 1 year for adults and 8 months for juveniles, Administration of Justice Act, § 768a. Concerning solitary confinement there is a maximum for adults of 14 days as long as the crime cannot lead to a prison sentence of 4 years or more. For adults there is an absolute (though still modifiable for special reasons) limitation of the duration of solitary confinement of 8 weeks. For juveniles under 18 years old the absolute time limit for solitary confinement is 4 weeks unless the crime was directed at the security of the state, the Administration of Justice Act, § 770c.
In 1999 the Danish Supreme Court stated that in principle it is not against any Danish law or human rights rules to keep juveniles (15 years old or older) in solitary confinement. It also stated that in juvenile cases there must be extraordinary reasons to use solitary confinement. Pretrial imprisonment as well as solitary confinement is decided in a court by the judge, not by the police, and never for more than 4 weeks at the time. There are relatively strict requirements about strong suspicion and concrete reasons like risk of repeated crime, the Administration of Justice Act, chapter 70.
Roughly 25 % or more of all prisoners in Denmark are in pretrial imprisonment. Included in the 25 % are adults and those juveniles who actually are in custody and not those juveniles who are technically in pretrial prison but spending the pretrial prison time in a secure social institution. In 2014 (the most recent statistics) 1324 out of 3784 prisoners were in pretrial imprisonment (2014 report from the Prison and Probations Service). As mentioned above juveniles in pretrial prison should as far as possible be transferred to social institutions. There are no available statistics on the use of this alternative to custody.
In the preparation for court the police and the prosecutor, who in Denmark work closely together, are in contact with the probation service if there is any chance that the case will result with a conditional sentence. This contact is established in order to have the probation service prepare a report on the accused for the judge as part of his fundament for decision. In juvenile cases, however, the preparatory reports are compiled by the social welfare authorities (unless Community Service Order is seen an option).
Instead of taking a juvenile case to court the prosecutor may in some minor cases decide to withdraw the charges; this option is mentioned in the Administration of Justice Act, chapter 65. For juveniles this is also an option and a condition will most often be that the juvenile will be obliged to follow instructions from the social welfare about how to behave, who to hang out with, when to be home at night, etc. A withdrawal of charges is dependent on a confession and on the judge formally accepting the conditions. No trial in court takes place, so the evidence is not controlled by the judge. If new crime is committed within (normally) 2 years the minor crime for which the charges were withdrawn will be included in the sentencing.
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