PARALLEL REPORT JULY 2010

TO THE UN COMITTEE ONTHE RIGHTS OF THE CHILDON THE 4TH PERIODIC REPORT BYTHE GOVERNMENT OF DENMARK ON THE IMPLEMENTATION OF THERIGHTS OF THE CHILD

CRC2010

PARALLEL REPORT JULY 2010

TO THE UN COMMITTEE ON THE RIGHTS OF THE CHILD

ON THE 4

TH PERIODIC REPORT BY THE

GOVERNMENT OF DENMARK ON THE IMPLEMENTATION OF THE CONVENTION ON THE

RIGHTS OF THE CHILD

The Danish Institute for Human Rights

Copenhagen, Denmark

July 2010

2

Contents

I. GENERAL OBSERVATIONS .........................................................................3

The Danish Institute for Human Rights...............................................................3 Domestic cooperation partners and other supplementary reports........................4

II. GENERAL MEASURES OF IMPLEMENTATION ...................................6 The Status of the Convention in Danish Law......................................................6

Consistent education on the Convention in schools ............................................7

III. CIVIL RIGHTS AND FREEDOMS .............................................................8

Minimum age for criminal responsibility ............................................................8 Maximum length of prison sentences ................................................................10

IV. FAMILY ENVIRONMENT AND ALTERNATIVE CARE ....................11 Children of imprisoned parents .........................................................................11

V. BASIC HEALTH AND WELFARE .............................................................13 Poverty and social exclusion..............................................................................13

VI. SPECIAL PROTECTION MEASURES ....................................................15 Humanitarian residence permit..........................................................................15

Imprisonment of 14-17 year old ........................................................................16 Solitary confinement of 14-17 year old .............................................................17

Re-socialization .................................................................................................18 Detention of 12-14 year old ...............................................................................18

Re-educational journeys and loss of residence permit.......................................18 Asylum seeking children ...................................................................................20

Repatriation agreement with Iraq ......................................................................21 Child Trafficking ...............................................................................................22

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I. GENERAL OBSERVATIONS

The Danish Institute for Human Rights

1. This parallel report on the 4th Periodic Report of Denmark concerning the International

Convention on the Rights of the Child submitted by the Government Denmark in August

2008 is compiled by the Danish Institute for Human Rights (DIHR).

2. DIHR is Denmark’s national human rights institution, established and functioning in

accordance with the Paris Principles. DIHR is the principal organization in Denmark for

monitoring and advising on human rights. DIHR was in 2007 re-accredited as an (A)

National Human Rights Institution (NHRI) by the International Co-ordinating Committee

of National Institutions for the Promotion and Protection of Human Rights (ICC).

3. DIHR was established in 1987 as the Danish Centre for Human Rights by Parliamentary

decision and its status as national human rights institution was acknowledged and

confirmed by the adoption of the Act governing the Establishment of the Danish Centre

for International Studies and Human Rights, Denmark/Act No. 411 (06.06.2002).

4. The mandate of DIHR vested in the establishing Act Section 2, Subsection 2,

encompasses, inter alia, “The Danish Institute for Human Rights shall in the execution of

its activities take its outset in the human rights recognized at any given time by the

international society, including in particular those laid down in the United Nations

Universal Declaration, conventions adopted by the United Nations and the Council of

Europe, and the civil rights contained in the Danish Constitution.”

5. On the website of DIHR (www.humanrights.dk) an overview on the human rights

situation in Denmark is provided. Thus, country reports, concluding observations,

individual decisions and judgements from regional and international monitoring bodies

are made accessible for a broader audience. The website provides the public with news

and comments on national day by day development on the human rights situation in

Denmark.

4

Domestic cooperation partners and other supplementary reports

1. DIHR is a member of the network the Collaborating group on the Rights of the Child in

Denmark1 (Samarbejdsgruppen om Børns rettigheder i Danmark).The collaborating group

has submitted a supplementary report, which can be downloaded from the various

organisations web pages.2

2. The National Council for Children (Børnerådet)3 as well as DIHR have submitted their

own supplementary report, due to the two institutions special legislative mandate.4 It is

therefore recommended that the report of DIHR is read in conjunction with the reports

submitted by the National Council for Children as well as the collaborating group.

3. DIHR has chosen to focus it’s analysis and resources’ as to which extent law, policy and

practice in the State party is in compliance with the principles and standards of the

Convention or could be improved to provide a more efficient protection of the child as

regarding the following topics5:

1. The Status of the Convention in Danish Law

2. Consistent education on UN Convention of the Rights of the Child in the schools

3. The Minimum age for criminal responsibility and maximum length of prison

4. Children of imprisoned parents

5. Poverty and social exclusion

6. Juvenile Justice Standards

1 The collaborating group consists of 16 organisations and institutions: Alle Børns Rettigheder, Amnesty

International, Børnerådet, Børnesagens Fællesråd, Børns Vilkår, Dansk Ungdoms Fællesråd, Danske

Handicaporganisationer, Det Danske Spejderkorps, DUI – Leg og Virke, Foreningen Grønlandske Børn,

Institut for Menneskerettigheder, OMEP, Red Barnet, Red Barnet Ungdom, Ungdommens Røde Kors og

UNICEF Danmark. 2 E.g. the webpages of: Alle Børns Rettigheder, Amnesty International, Børnesagens Fællesråd, Børns Vilkår,

Danske Handicaporganisationer, DUI - Leg og Virke, Red Barnet, Red Barnet Ungdom, Ungdommens Røde

Kors, and UNICEF Danmark 3 http://www.boerneraadet.dk/english

4 Available in Danish at:

http://www.boerneraadet.dk/files/Brd.dk%20Filbibliotek/PDF%20FILER/EKSTERNE%20RAPPORTER/BR

D%204.%20Suppl.%20Rapp.%20til%20FN%20-%202009.pdf 5 It is recommended that reports to the Committee reports should follow a specific thematic structure which is

based on the following eight clusters of articles: general measures of implementation (Articles 4, 42, 44.6);

definition of the child (Article 1); general principles (Articles 2, 3, 6, 12); civil rights and freedoms (Articles

7, 8, 13, 14, 15, 16, 17, 19, 37(a)); family environment and alternative care (Articles 5, 9, 10, 11, 18, 20, 21,

25, 27.4); basic health and welfare (Articles 18, 23, 24, 26, 27); education, leisure and cultural activities

(Articles 28, 29, 31); special protection measures (Articles 22, 30, 32, 33, 34, 35, 37, 38, 39, 40) see e.g. A

Guide For Non-Governmental Organizations Reporting To The Committee On The Rights Of The Child;

Geneva 2006 Third Edition.

5

7. Re-educational journeys

8. Asylum seeking children

9. Child Trafficking

The DIHR parallel report takes outset in the Committee’s Concluding Observations to

Denmark’s third periodic report.6

6 CRC/C/DNK/CO/3, 23 November 2005, Fortieth session, 22.

6

II. GENERAL MEASURES OF IMPLEMENTATION

(ARTICLES 4, 42, 44.6)

The Status of the Convention in Danish Law

In the concluding observations to Denmark’s third periodic report7 the UN

Committee on the Rights of the Child notes: Denmark has incorporated the

European Convention on Human Rights (ECHR) into domestic law and

recommended that Denmark strengthen the efforts to ensure that domestic laws and

regulations comply fully with the UN Convention on the Rights of the Child. The

Committee further recommended that the Convention on the Rights of the Child

should prevail whenever domestic law provisions are in conflict with the rights

enshrined in the Convention.

4. The Government of Denmark informed that the UN Convention on the Rights of the Child

is a relevant source of law, which may be invoked and applied by national courts and

administrative authorities.8

5. Two unwritten rules are applied in Danish law when a specific conflict arises between the

provisions of a Danish act and the provisions of an international convention signed and

ratified by Denmark. The “interpretation rule” states that Danish legislation as far as

possible should be interpreted in consistence with Denmark’s international obligations.

According to the “assumption rule” judicial authorities may assume, unless the opposite is

specifically stated by Parliament, that the intention when drafting the legislation was to

comply with international obligations. When a conflict occurs the Danish legislations

should thus be applied in accordance with international obligations. The Government of

Denmark thus states that these unwritten rules contribute to ensuring interpretation of

Danish legislation in conformity with the UN Convention on the Rights of the Child and

other international obligations by which Denmark is bound.

6. The Parliamentary Ombudsman has furthermore stated that the public administration on

its own initiative must include human rights obligations when making decisions in

specific cases.9

7. There is however only a limited number of cases in which the UN Convention on the

Rights of the Child is actually used. Since the last concluding observations from the

7 CRC/C/DNK/CO/3, 23 November 2005, Fortieth session

8 Denmark’s Fourth Report to the UN Committee on the Rights of the Child, August 2008

9 Folketingets Ombudsmands udtalelse FOU nr. 2005.425

7

Committee on the Rights of the Child in 2005 the DIHR have been able to find 5

published court cases where the convention is mentioned. From the 5 cases it seems that

the courts don’t apply the convention on their own initiative and only in two cases did the

courts actually comment on the individuals claim concerning the convention.10

In the

remaining cases the courts concluded that the convention didn’t give rise to a different

result than already decided through Danish legislation.

8. DIHR is concerned that a lack of incorporation of the Convention limits the application

of the convention by the courts and administrative decision making organs. Further DIHR

recommends that information on the Convention is translated into the most common

languages of immigrants and refugees residing in Denmark.

Consistent education on the Convention in schools

In the concluding observations to Denmark’s third periodic report11

the UN

Committee on the Rights of the Child notes: the Committee remained concerned at

the lack of systematic and consistent education on the Convention in schools.12

9. A study of the National Council for Children in 200813

showed that among 1,150 pupils in

the 7th

grade only 18 per cent of the children had heard of the Convention and 15 per cent

replied that they knew what the Convention was. This shows that the recommendation

about systematic and consistent education on the Convention in schools has not been

sufficiently addressed and that the efforts to share knowledge about the Convention have

to be intensified.

10. DIHR in concerned that the Convention is not well known by children and thus

recommends that the Convention is incorporated in the curricula and that the education

thereon in both primary and secondary schools is strengthened.

10

U2010.1599H (Supreme Court), U.2010.1590H (Supreme Court), U.2009.974H (Supreme Court),

U.2006.2468V (High Court), and U.2007.341H (Supreme Court). 11

CRC/C/DNK/CO/3, 23 November 2005, Fortieth session. 12

CRC/C/DNK/CO/3, 23 November 2005, Fortieth session, 22. 13

The Children´s Panel of the national Council for Children, 2008 (not published).

8

III. CIVIL RIGHTS AND FREEDOMS

(ARTICLES 7, 8, 13, 14, 15, 16, 17, 19, 37(A))

Minimum age for criminal responsibility

In General Comment No. 10 (2007) Children’s rights in juvenile justice section 32, the

Committee on the Rights of the Child recommends: that the state parties do not to

set a minimum age for criminal responsibility at a too low level and that a minimum

age below 12 years is considered to be internationally unacceptable. States parties

are as minimum encouraged to increase the level to 12 year and to continue to

increase it to a higher age level.

In section 10 the committee states: that the best interest of the child for instance

means that the traditional objectives of criminal justice, such as

repression/retribution, must give way to rehabilitation and restorative justice

objectives in dealing with child offenders.

11. The commentary to section 4 of the UN Standard Minimum Rules for the Administration

of Juvenile Justice (The Beijing Rules) states that there is a close relationship between the

notion of responsibility for delinquent or criminal behaviour and other social rights and

responsibilities (such as marital status, civil majority, etc.).

12. June 1st 2010, the Danish Parliament adopted bill L164

14 which reduced the minimum age

of criminal responsibility from 15 to 14 years. Furthermore, the bill removes a provision

in the Danish penal code which states that the maximum prison sentence for persons

below the age of 18 is 8 years (see paragraph 23-25 below). Instead a provision is

introduced by which persons below the age of 18 can not be sentenced to life

imprisonment. The bill entered into force 1 July 2010.

13. The decision to lower the minimum age of criminal responsibility is contrary to the

recommendations made in 2009 by the Commission on Juvenile Delinquency, appointed

by the Ministry of Justice,15

as well as numerous other organizations including the DIHR.

The commission emphasized the importance of having sufficient options available when

dealing with juvenile delinquents and that these options do not constitute formal

punishment and thus recommended that the minimum age for criminal responsibility

remained at 15 years.

14

Bill No 164, 2009-2010 amending the Criminal Code, Act on the Administration of Justice, and Act on

Compensation to Victims of Crime. [L 164 Forslag til lov om ændring af straffeloven, retsplejeloven og lov

om erstatning fra staten til ofre for forbrydelser], available in Danish at:

http://www.ft.dk/samling/20091/lovforslag/L164/index.htm 15

Kommissionen vedrørende ungdomskriminalitet, Betænkning nr. 1508 om Indsatsen mod

ungdomskriminalitet (2009)

9

14. The amendment of the criminal code fails to ensure a closer relationship between the

notion of responsibility for delinquent or criminal behaviour and other social rights and

responsibilities in Danish legislation. No other place in Danish legislation is a distinction

made between the legal position of children aged 13 or 14. For instance, the right to be

married the right to vote is achieved at 18. Family reunification with children is as a point

of departure only allowed for children below 15, and section 183 in the Act on the

Administration contains special provisions for court hearings of children below 15 just as

the Act on Police Activities16

contains special provisions on administrative detention of

children below 15 and prohibits detention of children below 12.

15. Section 222 of the Danish Penal Code prohibits sexual intercourse with a person below

the age of 15. A consequence of lowering of the minimum age for criminal responsibility

to 14 is that two 14 year olds commit a criminal offence by engaging in sexual

intercourse. The preparatory works to bill L164 states in such cases it will be possible to

withdraw the charges, cf. section 722 of the Administration of Justice Act. This does

however not change the fact that it is considered a criminal offence. For children at the

age of 14 to have to rely on charged being withdrawn creates an arbitrary legal situation. It

is the opinion of the Danish Institute for Human Rights that maintaining precise,

predictable and available criminal provisions would be more compatible with the

protection against arbitrary deprivation of liberty enshrined in several international

instruments.17

16. In its report the Commission on Juvenile Delinquency highlights that the average number

of criminal actions committed by 10-14 year old have not increased during the years

2000-2007 and the Commission states that there is no scientific results supporting the

notion that reducing the minimum age for criminal responsibility will reduce the criminal

activity committed by children.

17. Finally it should be noted that the remaining Nordic countries Finland, Iceland, Norway

and Sweden all have a minimum age for criminal responsibility of 15.

16

Lov nr. 444 af 09.06.2004 om politiets virksomhed 17

Inter alia section 37 in the UN Convention on the Rights of the Child, section 9 in the UN

convention on Civil and Political Rights and section 5 of the European convention of Human

Rights

10

18. DIHR is concerned about the lowering of the minimum age and recommends that

minimum age for criminal responsibility at 15 years is reintroduced.

Maximum length of prison sentences

19. As a result of the passing of bill L164, persons below the age of 18 can receive prison

sentence for 16 and in some instances 20 years. This is opposed to a maximum limit of 8

years prior to bill L164. According to section 82 no. 1 of the Penal Code it is to be

considered a mitigating circumstance that the perpetrator of a criminal offence was under

18 years.

20. It is the opinion of the Danish Institute for Human Rights that the increase in the

maximum length of imprisonment of minors fails to secure the right of children to

development as enshrined in article 6 of the Convention on the Rights of the Child.

Furthermore the arrest, detention or imprisonment of a child shall be for the shortest

appropriate period of time and restorative justice should be prioritized when dealing with

juvenile delinquents.

21. DIHR is concerned about the maximum length of prison sentences for children and

recommends that the maximum length of prison of 8 years for persons under 18 is

reintroduced.

11

IV. FAMILY ENVIRONMENT AND ALTERNATIVE CARE

(ARTICLES 5, 9, 10, 11, 18, 20, 21, 25, 27.4)

Children of imprisoned parents

22. A recently published research study by the DIHR, supported by the Egmont Foundation,

describes the different problems these children face and the way they are treated by the

authorities. It has been estimated that there are constantly around 4000 children, who have

a parent in prison in Denmark and these children generally pay a very high price when

their parents commit a crime and go to prison. The study is based on interviews, prison

and institution visits, a legal analysis and a national survey involving the Prison service,

the Police, and Social services. The whole process from the arrest of a parent, through

imprisonment to release is analyzed from the perspective of the rights of the child.

23. The study shows that the health, situation, and life conditions of these children may be

affected in various ways, when a parent is imprisoned. Some children, for example, have

antisocial reactions, some take on the role of “small adults”, and some are stigmatized and

affected in their situation at school. There are also children who display depressive

reactions, and children of prisoners are at greater risk of becoming offenders themselves.

24. Some of the main problems in Denmark concerning children of prisoners are that it can

have a long lasting psychological impact on children when they witness the actual arrest

of a parent. Unfortunately the police practices in that regard seem to vary quite a lot

according to local cultures and individual policemen. It is also dependent of the individual

police officer whether reports are written to the social authorities, and the involvement of

local social authorities varies greatly according to resources, priorities, and knowledge.

25. Also the often strict limits on communication during pre-trial detention can have strong

impact on the children. This is especially the case when parents are subjected to pre-trial

solitary confinement, but is also a general feature of the pre-trial regime, which, for

example, can include close proximity police surveillance of visits for many pre-trial

detainees. In prisons the treatment of children during visits is also dependent on the staff

culture in the particular prison and in the visiting area and the individual prison officer

currently on duty. Visiting facilities in Danish prisons range from relatively bad to very

good – from small badly maintained and barren rooms were access to a bed and condoms

are provided to visiting apartments where entire families can cook and stay overnight.

12

26. Several of these issues can be analyzed from the point of view of the rights of the child.

For instance, in article 9 par. 3 of the CRC it is stated that children have the right to

regular and direct contact whit parents from whom they are separated. Another example is

article 3 par. 1, which states that the child’s interest must always be a primary

consideration in all administrative and legal cases concerning children. 18

27. In the research study by the DIHR, 27 concrete suggestions for reform in Denmark are

presented, based on the Rights of the Child. Some of the most important suggestions are:

1. Social authorities should be contacted when a parent is imprisoned.

2. “Children’s officers” should be established within the police and the prison

service.

3. A child should have the right to see his or her parent within one week of the initial

imprisonment.

4. A child should have the right to visit an imprisoned parent more than one hour

each week.

5. Minimum standards for visiting facilities should be improved.

6. Prison regimes should make it possible for imprisoned parents to take their

responsibility as parents seriously.

28. DIHR will discuss the matter with the Minister of Justice and the Minister of Social

Affairs at a meeting in August 2010 and appreciates the Government’s positive respond to

DIHR’s study.

29. DIHR would like to draw the Committee’s attention to this area and recommends that

the Government reviews its policy in the field and increases its focus on children of

imprisoned parents.

30. The Government has recently introduced the Reform of the Child which contains a

number of elements that will contribute to e.g. create a safe childhood for children.19

DIHR welcomes this initiative.

18

Peter Scharff Smith and Janne Jakobsen: Når straffen rammer uskyldige. Børn af fængslede i Danmark

(”When the innocent are punished. Children of imprisoned parents in Denmark”), publisher: Gyldendal, 312

p., 2010. 19

Act No. 628 on the Reform of the Child of 11 June 2010.

13

V. BASIC HEALTH AND WELFARE

(ARTICLES 18, 23, 24, 26, 27)

Poverty and social exclusion

In its Concluding Observations in 2005 the UN Committee on the Rights of the Child

recommended: that Denmark ensure that the needs of all children are met, and that

it take all necessary measures to ensure that children, in particular those from

socially disadvantaged families and of non-Danish ethnic origin, do not live in

poverty.

31. In its Concluding Observations the Committee on Economic, Social and Cultural Rights to

Denmark. (14/12/2004, E/C.12/1/Add.102, § 33) stated the following: “The Committee

calls upon the State party to strengthen its efforts to combat poverty and social exclusion

and to develop a mechanism for measuring the poverty level and monitor it closely.”

32. In the spring of 2007 the Government introduced the so called 300-hours rule in order to

get as many as possible of those who are on state support into the labour market and to

promote the integration of foreigners in Denmark. In summer 2009 the 300-hours rule was

amended and the requirement increased to 450 hours. The rule means that married couples

where either one or both spouses are recipients of cash benefit each of them must fulfil a

requirement of 450 hours of regular and unsupported work within the last 24 months in

order to maintain the right to cash benefit. If both spouses work less than 450 hours they

will not be viewed as being available for the labour market and one of them will therefore

no longer be entitled to cash benefit.

33. A study conducted by The Danish National Centre for Social Research “The rule of 300

hours: The meaning of the rule of 300 hours for married recipients of cash assistance”20

shows that persons of a non-Danish origin were highly overrepresented among those

denied continued benefit. Such a marginalisation will constitute an additional barrier for

integration also in relation to the children of the affected groups which presumably will

have future consequences in relation to these children’s educational integration into the

Danish society as well as their integration into the labour market.

20

Henning Bjerregård Bach og Brian Larsen, 14. juni 2008, SFI – Det nationale Forskningscenter for velfærd

08:17.

14

34. A study21

carried out in 2009 shows that 59,000 children in Denmark live in poverty

corresponding to nearly 5 per cent of all children in Denmark. By procuring statistical

information in this area it will be possible to examine to what extend The Start Help and

the reduction of social services including cash benefit will mean that families with

children in Denmark live in actual poverty as well as which sections of the population is

affected.

35. DIHR is concerned about the effect that these regulations has on children and

recommends that the Government develops a mechanism for measuring the poverty level.

Further the Government should provide comparative data on the number of children living

in poverty and it should take initiatives which increases focus on children in socially

disadvantaged families and ensures that children suffering from poverty receive sufficient

special help and protection.

21

“Growing Unequal? Income Distribution and Poverty in OECD Countries”, OECD, 2008.

15

VI. SPECIAL PROTECTION MEASURES

(ARTICLES 22, 30, 32, 33, 34, 35, 37, 38, 39, 40)

Humanitarian residence permit

36. Denmark has for many years granted temporary residence permit on humanitarian grounds

to foreigners that suffer from serious physical or mental diseases. In order to counter an

increase on the number of asylum applications from persons from the Balkans in Europe,

the Government have decided, and the Parliament approved, a change likely to lead to a

significant decrease in the number of permissions to be granted in the coming years.

37. According to previous practice, a person who suffers from serious physical or mental

diseases could be granted a temporary residence permit if the individual did not have the

economic means to pay for the necessary medication in principle available in the

individual’s country of origin. Under the new practice, even if the individual cannot afford

the medication, the individual will not be granted residence permit in Denmark.

38. The new practice is to be administered in accordance with Denmark’s international

obligations, including in particular the European Convention on Human Rights. This

means none the less that individuals will be required to bear even significant economic

cost. Economic impossibility and disproportionate costs will not in the future be grounds

for a temporary residence permit in Denmark.

39. Children may be significantly affected if they are to leave Denmark with a seriously ill

parent – or seriously ill parents – that need medication, but cannot afford medication in

the country of origin. If, for example, a family applied for asylum in Denmark in 2005 and

was granted a humanitarian residence permit in 2007, an application for extension will in

the future be rejected and children of such families may face the need to leave Denmark

with a parent – or with parents – that are e.g. seriously mentally ill and have not prospect

of access to necessary medication in the country of origin.

40. The new practice will apply to individuals applying for an extension of previously

granted residence permits as well as to first time applicants. There is no official estimate

of the number of individuals and families that will be affected by the new practice.

16

41. The DIHR is concerned that the practice entails a not insignificant risk of serious human

rights violations of the most vulnerable and weak individuals in Denmark, namely

physically or mentally ill foreigners. The concern is especially valid where children are

involved. The Government has not expressed a position on the significance of the

Convention on the Rights of the Child in respect of the new practice.

Imprisonment of 14-17 year old

In the Concluding Observations 2005 the Committee recommends: that the State

party ensure that juvenile justice standards are fully implemented, in particular

articles 37 (b), 40 and 39 of the Convention, as well as the United Nations Standard

Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and

the United Nations Guidelines for the Prevention of Juvenile Delinquency (the

Riyadh Guidelines), and in the light of the Committee’s day of general discussion on

the administration of juvenile justice.

In particular, the Committee recommends that the State party:

“(a) Review as a matter of priority the current practice of solitary confinement, limit

the use of this measure to very exceptional cases, reduce the period for which it is

allowed and seek its eventual abolition;

(b) Take measures to abolish the practice of imprisoning or confining in institutions

persons under 18 who display difficult behaviour; and

(c) Fully implement the rules for children under 15 in conflict with the law and

ensure that they are not deprived of their liberty without due process, in accordance

to article 40 of the Convention.”

42. According to Article 37 (b) of the Convention on the Rights of the Child, arrest, detention

and imprisonment may only be applied as a measure of last resort and for the shortest

appropriate period of time, and children may as a rule not be deprived of liberty unless

separated from adult offenders.

43. By legislative amendment in 200822

the duration of remanding has been limited – as

principal rule - to a maximum of 4 months and 8 months respectively (depending on the

sort of crime committed) for children under 18 years.23

1 June 2010 the Danish Parliament

adopted bill L1641 which reduced the minimum age of criminal responsibility from 15 to

14 years. (See paragraph 11-21). These amendments are considered to increase the

number of young offenders in contact with the Danish prison system.

22

Act no. 493 17. June 2008, put into force 1. July 2008 23

For more details look the State Report p. 73

17

44. According to Danish law minors who have received a prison sentence are to be placed in

secure/locked residential centres managed by the social service, functioning as surrogate

prisons. In special circumstances these institutions can refuse a young criminal which

means that young people will be imprisoned in the ordinary prison system. Sometimes it is

not possible to ensure sufficient recreational opportunities for young people with the

existing resources. The reduced minimum age of criminal responsibility from 15 to 14

years will increase the number of children imprisoned and special measures are to be

taken to avoid that a number of these young offenders are imprisoned in the ordinary

prison system.

45. DIHR is concerned about the effect is has in children to be placed in the ordinary prison

system and recommends that sufficient resources are used to establish the necessary

number of accommodations in secure/locked institutions for young offenders in order to

put an end to imprisonment of minors together with adults. Further these institutions for

young people should focus on the special needs of this group, especially education and

engaging in physical activity and to increase the level of psychological meaningful social

contact for detained children.

Solitary confinement of 14-17 year old

46. By legislative amendment in 2006 the number and the duration of solitary confinement

have been limited.24

A study from the Ministry of Justice however shows an increase in

the total number of solitary confinements from 2007 until 2008.25

47. In 2008, four young people under 18 years have been held in solitary confinement.

48. DIHR is concerned about solitary confinement of children and recommends that

imprisonment of children in solitary confinement is abolished.

24

Act no. 1561 20. December 2006, put into force 1 January 2007. 25

http://www.justitsministeriet.dk/fileadmin/downloads/Forskning_og_dokumentation/Isolationsrapport%20200

8.pdf

18

Re-socialization

49. Article 40 (4) in CRC mentions education among other subjects in the best interests of the

child. In Denmark a report on education in the Danish prisons has been made by Peter

Koudahl for The Danish Prison and Probation Service, based on interviews with prisoners.

One of the points highlighted by the adult prisoners was that the education offered to

young offenders was much too limited and narrow to re-socialize the young prisoners.

50. DIHR is concerned about the level of re-socialization initiatives and recommends a

review of the Government’s policy.

Detention of 12-14 year old

51. According to Danish law26

children between the age of 12 and 14 years can be detained by

the police to a period of time not exceeding six hours and may never exceed 24 hours.

52. DIHR is concerned about detention of children and recommends that legislation is

amended such that children under 14 years may not be detained alone and that detention is

minimized.

Re-educational journeys and loss of residence permit

The Committee remains concerned: about the legislative reform that reduces the age

limit of the child to family reunification from 18 to 15 years. The Committee

recommends that the State party undertake all measures to ensure that family

reunification procedures fully comply with article 1 of the Convention.

53. On March the 26th

2010 a Bill was presented in Parliament proposing comprehensive

amendments of the Aliens Act, including a reform of the rules on access to permanent

residence.27

The Bill was adopted two month later, on 25 May.28

With the amendments of

the Aliens Act the requirements on access to permanent residence have been strengthened

to a degree that will probably prevent many foreigners from acquiring a permanent

residence permit and thus also prevent them from access to citizenship. The agreement has

26

The Dansih Administration of Justice Act, Chapter 75b, § 821a. 27

L 188, 2009-10, Forslag til lov om ændring af udlændingeloven.(Skærpede udvisningsregler, samkøring af

registre med henblik på styrket kontrol, reform af reglerne om tidsubegrænset opholdstilladelse, inddragelse af

studieopholdstilladelser ved ulovligt arbejde, skærpede regler om indgivelse af ansøgning om

opholdstilladelse efter indrejse her i landet og opsættende virkning, m.v.). 28

Lov nr.572 af 31. maj 2010.

19

been implemented through amendments of a number of acts, among others the Aliens Act

(and the Integration Act comprising many positive changes as to integration, among others

a better reception of foreigners in the local society and educational options on a broader

scale).

54. The changes regarding access to permanent residence may seriously impair the status of

many immigrants, including children.

55. A residence permit for a minor can now be repealed if the minor stays 3 months outside

the country. The concept of re-educational journeys is unclear. The legislative text

mentions re-educational journeys or other journey abroad with a negative impact for

school attendance and integration. DIHR acknowledge that some re-educational journeys

might have a negative impact on the best interest of the child. However, DIHR find it is a

concerning development that the child risks losing its residence permit and thus be

sanctioned for a decision typically made by the parents.29

56. DIHR is concerned about the effect that the changes regarding access to permanent

residence might have on children. Further DIHR is concerned that a child risks losing its

residence permit due to re-educational journey and thus be sanctioned for a decision

typically made by the parents. The Government should thus further clarify the concept of

re-educational journeys and preventive measures and information on re-educational

journeys should be prioritized. Further, monitoring and mapping of the extent of re-

educational journeys of 3 months or more should be improved and finally the Government

29

For the Governments position on re-educational journeys please refer to Memorandum to the Danish

Government -Assessment of the progress made in implementing the 2004 recommendations of the Council of

Europe Commissioner for Human Rights Strasbourg, 11 July 2007 -CommDH(2007)11 – on maximum age

limit of 14 for family reunification (abolishing statutory right to family reunification between 15 and 18)

which is still in force and of relevance to the above mentioned issue.

Recommendation 4 on the maximum age limit of 14 for the family reunification of children.

The Commissioner recommended raising the maximum age limit of 14 for family reunification of children to

17 years. He urged the Danish Government to revise the family reunification rules with respect to the age limit

for children in order to bring the Danish legislation in line with the international definition of the child (i.e. a

person below the age of 18) and the presumption that living with the family is in the best interest of a child,

unless the contrary is proven. Thus, children between 15 and 18 years of age are not barred in general terms

from applying for family reunification. The immigration authorities thus examine all applications for family

reunification with children. The lowering of the age limit from 18 to 15 years merely means that children

between 15 and 18 do not have a statutory right to family reunification. The rule is no expression of a

prohibition against residence permits for these children. In addition according to the document “ The

Government believes that the best interests of the child must be the primary consideration in all matters

affecting the child. The very reason for reducing the age limit to 15 years was, in fact, consideration for the

best interests of the child. With the rule, the Government wants to prevent children from being sent on re-

education journeys to the parents’ countries of origin and thus being separated from their parents living in

Denmark.” Page 26.

20

should reconsider the abolishment of the statutory right for children to family

reunification between 15 and 18.

Asylum seeking children

While noting that the revision to the Aliens Consolidation Act and

Integration Act to improve the legal status of asylum-seeking children

and to ensure that more attention is paid to their needs, the Committee

remains concerned about the conditions in reception centres. It is

particularly concerned at the limited capacity to provide adequate

psychological support as well as recreational opportunities. The

Committee is also concerned that a number of unaccompanied asylum-

seeking children disappear from reception centres.

The Committee recommends that the State party undertake all

measures to improve the conditions of reception centres and that

qualified guardians are assigned to all unaccompanied asylum-seeking

children. It further recommends that the State party conduct a study on

unaccompanied children who disappear from reception centres and the

outcome of the study should guide the State party to respect the rights of

these children. The Committee draws the attention of the State party to

the General Comment on Treatment of unaccompanied and separated

children outside their country of origin (CRC/GC/2005/6).

57. The Red Cross Denmark has (first 6 months) in 2009 received 227 unaccompanied

children and 130 of them have disappeared. None has so far received asylum.

Approximately 3 out of 4 originate from Afghanistan. Approximately half of the children

disappear before their case is finalized. It is expected that the majority try to contact

family member or relatives in other countries.

58. It follows from a memorandum from the Ministry of Refugee, Immigration and

Integration Affairs from 16 January 2008 that education for rejected asylum seeking

children and young people that have been in the country for at least 3 years after their final

rejection for application for asylum and who come from countries where Denmark have

not entered into agreements regarding repatriation are to be strengthened.30

59. According to an agreement between the Government and Danish Peoples Party the effort

for children of rejected asylum seekers who have been in the country for more than three

years should be improved. The agreement covers specific measure for persons belonging

30

The Ministry for Refugee, Immigration and Integration Affairs, Memorandum 16 January 2008, Faktaark –

aftale om vilkår for asylansøgere [Fact sheet – agreement regarding conditions for asylumseekers].

21

to countries where there is no repatriation agreement (Iran, Kosovo and Somalia (and Iraq

up until 13 may 2009).

60. According to the Red Cross the majority of the unaccompanied asylum seeking children

receive a staying permit. Also, according to Red Cross the Danish system should be

commended for the opportunity for the children to benefit from the advice of a legal

guardian.

61. DIHR is concerned about the fate of asylum seeking children that disappear.

Repatriation agreement with Iraq

62. Denmark and Iraq signed on May 13 2009 a repatriation agreement on the rejected Iraqi

asylum seekers. According to the UN Refugee Agency (UNHCR), the situation in central

Iraq is too unstable for refugees to return to the area. In a letter dating 28 may 2009 the

organization has criticized the Government’s decision to forcibly repatriate rejected

asylum seekers back to central Iraq. The Government has responded stating that it would

not intervene in the task of the Refugee Appeals Board, which rejected the appeals of the

asylum seekers.

63. Among the group of Iraqis are 21 children. NGOs have raised the issue whether the return

procedure is in the best interest of the child and the UN Convention on the Rights of the

Child (especially in relation to children with traumatized parents or who are traumatized

themselves). In an answer to the Folketingets Udvalg for Udlændinge- og

Integrationspolitik (Parliamentary Standing Committee on Alien and Integration Policy),

the Refugee Appeals Board commented in a brief on the interpretation of the

recommendations of the UNHCR on the situation in Iraq. According to the brief the

UNHCR recommendations is of a general character and not legally binding for the Board.

However the recommendations are used as a significant part of the Boards collection of

background material when a concrete and individual case is assessed. In the opinion of the

Board and the according to its jurisprudence the general situation in Iraq cannot in itself

justify the granting of a staying permit cf. the Aliens Act section 7. According to the brief

this interpretation is in line with ECtHR case-law judgment of July 17, 2008 NA. v. U.K

(Appl. 25904/07).

22

64. The (Danish) Rehabilitation and Research Centre for Torture Victims (RCT) appealed on

25 June 2009 together with other organizations to the Minister of Integration and Asylum

Affairs, arguing that rejected asylum seekers from Iraq should be issued with a

humanitarian residence permit. The organizations encouraged the Danish Government to

observe the recommendations from UNHCR not to forcibly deport rejected asylum

seekers to certain parts of Iraq and who had been in Denmark for a long period of time.

65. In the view of DIHR, Denmark has a duty to ensure that unaccompanied children are

properly received in their country of origin and that the situation in which the child will be

in are taken into consideration. In the opinion of DIHR, Denmark therefore has an

obligation to ensure that all children who are offered a prepared return are sent back to

proper conditions. It is however the opinion of DIHR that it is not enough that children

will only receive a proper and well planned return “as far as it is possible”. Rather the

assessment should take its point of departure in the situation of the child and the best

interest of the child under the specific circumstances. This process should include the

child and lead to a decision that reflects the view points and wishes of the child.

66. DIHR is concerned about the polices regarding the returning of children, The

Government should initiate more thorough follow-up procedures, concerning the fate of a

child who has been returned. Further the Government should provide the Committee with

statistical information concerning detention as well as information in general regarding

children in Denmark who do not have a legal residence permit.

Child Trafficking

67. According to Danish Red Cross, in 2008 until first quarter of 2009 the organization has

encountered 15 minors who might have fallen victim to child trafficking.

68. The approach to child victims of trafficking as an integrated issue in the general

trafficking context is exemplified by the statement in the 2007 Action Plan to Combat

Trafficking in Human Beings (Denmark/Regeringen (2007) Handlingsplan til bekæmpelse

af handel med mennesker 2007-2010): ‘Children constitute a separate action area because

this is a group that needs special protection. Because of their age, they are not yet in a

position to tend fully to their own needs. And therefore there is an obligation to give

special consideration to this group. However, there will be cases in which it will be most

23

expedient for girls who are minors and who have been trafficked into prostitution to make

use of the services provided to adult women trafficked into prostitution.31

69. There is no specific legal framework concerning administrative detention pending

deportation of trafficked children. There are, however, in the Aliens Act provisions

creating the legal basis for detention of foreigners who are waiting to be deported in

general. Thus, children over 15 years of age who are waiting for deportation can be placed

in the same detention with adults but this is very seldom used.32

Furthermore,

consideration should be taken of the fact that it is often difficult to determine a child’s

correct age.

70. DIHR is concerned that there are no legal provisions ensuring the right of trafficked

children (or other trafficked persons) to a renewable residence permit. Thus, the child will

be sent back to the country of origin even if his or her report to the police leads to bringing

charges against human traffickers and to their conviction. Children running the risk of

trafficking should not be expelled from Denmark. Further the Government should see to

that individual action plans for the children are developed by the social authorities.

31

Denmark/ Regeringen (2007) Action plan to combat trafficking in human beings 2007-2010, page 7. The

Action Plan is available in English at: http://ligeuk.itide.dk/files/PDF/Handel/Menneskehandel_4K.pdf 32

Telephone conversation with department manager and personal and security consultant from Ellebæk

Prison, 29.07.2008.