Michael de Laine

UN Special Rapporteur regrets torture still omitted from Danish criminal law

By Michael de Laine, Copenhagen 4 March 2009

UN Special Rapporteur regrets that a specific crime of torture is still missing in Danish criminal law. He was positive to the establishment of a working group to investigate alleged CIA rendition flights in Danish air space, but he expressed concern about plans to employ diplomatic assurances to return suspected terrorists to countries known for torture

The United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, regrets that a specific crime of torture is still missing in Danish criminal law.

He added that he was encouraged by the establishment of an inter-ministerial working group to investigate alleged Central Intelligence Agency (CIA) rendition flights operating through Denmark and Greenland.

In his recently released report on his mission to Denmark and Greenland, which took place from 2 to 9 May 2008, Nowak expressed concerned about recent plans to employ diplomatic assurances to return suspected terrorists to countries known for their practice of torture.

The Special Rapporteur expressed his concerns about recent developments or practices in Denmark which may undermine the absolute prohibition of torture through the use of certain counter-terrorism strategies. Beyond any doubt, cooperation between various intelligence services is a necessary feature of the global fight against terrorism. However, he said, where such cooperation involves the use of diplomatic assurances and cooperation in extraordinary renditions, it carries the risk of leading to complicity in human rights violations.

Nowak said he was alarmed about the consideration recently being given by the Danish government to employ diplomatic assurances to return suspected terrorists to countries known for practising torture.

“Such a practice would constitute an attempt to circumvent the absolute prohibition of torture,” he said in the report. The principle of nonrefoulement in article 3 of the Convention against Torture applies to transfers of detainees within a state party’s custody to the custody whether de facto or de jure of any other state.

Nowak add that, as he has pointed out on numerous occasions, diplomatic assurances with regard to torture are nothing but attempts to circumvent the absolute prohibition of torture and nonrefoulement. Further, diplomatic assurances are unreliable and ineffective in protection against torture and ill-treatment.

“The Special Rapporteur is therefore of the opinion that states cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or ill-treatment upon return,” the report states.

As the country leading diplomacy for anti-torture efforts worldwide, the Special Rapporteur called on Denmark to also lead by example and refrain from using diplomatic assurances.

Rather than pursuing efforts at the EU level aimed at introducing the practice of diplomatic assurances, he encouraged the Danish government to consider taking the lead in efforts to develop a common European policy or approach aimed at improving the conditions of detention and the situation of torture and ill-treatment in the potential countries of return.

The Special Rapporteur added he was encouraged by the establishment of an inter-ministerial working group to investigate alleged Central Intelligence Agency (CIA) rendition flights operating through Denmark and Greenland.

While noting Denmark’s long history of generous support to civil society both at home and abroad, particularly in the area of rehabilitation for victims of torture, the Special Rapporteur said a significant focus of his mission was visiting places where persons are deprived of their liberty, such as police stations, prisons, psychiatric institutions, and detention centres for asylum-seekers.

The Special Rapporteur reported that no allegations of torture and very few complaints of ill-treatment from detainees were received. Nevertheless, he strongly cautioned against complacency, encouraged the government to ensure that all allegations and suspicions of torture and ill-treatment are meticulously investigated, and that perpetrators are appropriately punished.

Noting recent legislative initiatives to add torture as an aggravating circumstance of various criminal offences, which is not subject to the statute of limitations, the Special Rapporteur regretted that a specific crime of torture is still missing in Danish criminal law.

The hallmark of the prison system in Denmark, the Special Rapporteur observed, is the “principle of normalization”, meaning that life behind bars should reflect life outside to as great an extent as possible. Taken together with an attentive approach to the concerns of detainees by prison staff, the result is generally a high standard of conditions of detention inside Danish prisons, both in terms of infrastructure and day-to-day living standards.

Here, the Special Rapporteur noted that in Denmark and Greenland a significant proportion of prisons are open institutions. He also noted initiatives to accommodate the special needs of children of imprisoned parents through establishing, for example, child-friendly visiting rooms in prisons, as well as initiatives to consider the impact on children of a parent being taken into custody.

The Special Rapporteur further noted the mixing of male and female prisoners. While the positive effects of such arrangements have long been accepted in Danish society, in light of international standards which advocate segregation of the sexes, concern must be expressed for the need to rigorously ensure that appropriate safeguards are in place.

The Special Rapporteur commended the efforts of the government in carrying out successful awareness-raising campaigns on domestic violence and trafficking of women, which have contributed to the reduction of gender-specific violence.

Concerning trafficking, the Special Rapporteur considered that the efforts of the government are aimed less at the rehabilitation of victims of trafficking in Denmark than on their prepared return to their countries of origin.

In Greenland, it is a serious concern that action against domestic violence has so far not received adequate attention, despite the severity of the problem.

Notwithstanding the government’s efforts to restrict the use of solitary confinement, the extensive recourse to this remains a major concern, particularly with respect to pre-trial detainees. Solitary confinement has a clearly documented negative impact on mental health, and therefore should be used only in exceptional circumstances or when absolutely necessary for criminal investigation purposes. In all cases, solitary confinement should be used for the shortest period of time.

Notwithstanding the government’s efforts to reduce the use of solitary confinement, the Special Rapporteur expressed concern at the extensive recourse to this practice during criminal investigations in pre-trial detention, in order to manage certain categories of convicted prisoners or as a form of punishment for disciplinary infractions. If prolonged pre-trial detention is used as a means of coercion to extort information or a confession, it may amount to torture.

With regard to detention of foreigners and asylum-seekers the Special Rapporteur, while being encouraged by the low number of asylum-seekers in detention as compared with some other European countries, is concerned by the fact that there is no maximum period for such administrative detention. Prolonged deprivation of liberty for administrative reasons without knowing the length of the detention may amount to inhuman and degrading treatment. Furthermore, although mandatory habeas corpus proceedings exist, the Special Rapporteur received information indicating that legal challenges to administrative deprivation of liberty of foreigners are not effective in practice.

The Special Rapporteur recommended that the Greenland Home Rule Government develop and implement an adequately resourced plan of action against domestic violence in Greenland in cooperation with actors with relevant experience, such as the Ministry of Welfare and Gender Equality.

Click here to read the full report