REPORT ON GREENLAND S JUDICIAL SYSTEM

Transcription

1 REPORT ON GREENLAND S JUDICIAL SYSTEM SUMMARY SUMMARY COMMISSION ON GREENLAND S JUDICIAL SYSTEM Report No. 1442/2004

2 Kronologisk fortegnelse over betænkninger Frist- og forældelsesregler på skatte- og afgiftsområdet 1427 Reform af den civile retspleje II 1428 Retssikkerhedskommissionens betænkning 1429 Forenklinger i jordlovgivningen 1430 Betænkning fra Udvalget om Aktieoptioner 1431 Betænkning om straffeprocessuelle tvangsindgreb over for børn under den kriminelle lavalder 1432 Valgret under udlandsophold 1433 Betænkning om forbrugerbeskyttelse ved erhvervelse af byggematerialer 1434 Strukturkommissionens betænkning 1435 Betænkning om den militære straffelov, retsplejelov og disciplinarlov 1436 Betænkning om reform af den civile retspleje III 1437 Et nyt udligningssystem 1438 Forældelse af strafansvaret for særlovsovertrædelser m.v Betænkning om bortvisning af voldelige og truende personer fra hjemmet 1440 Betænkning om revision af forbrugeraftaleloven 1441 Straffelovrådets betænkning om forældelsesretlige spørgsmål 2004 IT- og Telestyrelsen Holsteinsgade 63, 2100 København Ø Telefon Fax

3 REPORT ON GREENLAND S JUDICIAL SYSTEM SUMMARY COMMISSION ON GREENLAND S JUDICIAL SYSTEM Report No

4 Report No on Greenland's Judicial System The publication is available in print from the online bookstore of Danmark.dk Telephone or it can be downloaded from the website of the Danish Ministry of Justice. ISBN ISBN (Internet) Bind 1 Generelt om retsvæsnet ISBN Bind 2 Retsplejen og domstolene ISBN Bind 3 Kriminaliteten og kriminalforsorgen ISBN Bind 4 Politiet, opfølgning mv. ISBN Bind 5 Lovudkast 1. del ISBN Bind 6 Lovudkast 2. del ISBN Bind 7 Litteratur og bilag ISBN DKK 1,000 incl. VAT Kalaallit nunaanni eqqartuussiveqarneq pillugu isumalliutissiissut 1442 ISBN ISBN (Internet) Atuagaq 1 Eqqartuussiveqarneq pillugu nalinginnaasut ISBN Atuagaq 2 Eqqartuussisaaseq eqqartuussiviillu ISBN Atuagaq 3 Pinerlunniartarneq aamma pinerluttunik isumaginnittoqarfik ISBN Atuagaq 4 Politiit, malitseqartitsineq il.il. ISBN Atuagaq 5 Inatsisissatut missingiut immikkoortoq 1 ISBN Atuagaq 6 Inatsisissatut missingiut immikkoortoq 2 ISBN Atuagaq 7 Atuakkat atorneqartut ilanngussallu ISBN DKK 1,000 incl. VAT Resume ISBN DKK 150 incl. VAT Naalisarnera ISBN DKK 150 incl. VAT Summary ISBN DKK 150 incl. VAT Printed by: Schultz Grafisk

5 3 CONTENTS INTRODUCTORY PART (Chapters I to V of the Report) Introduction Terms of reference of Commission Composition of Commission Methodology of Commission Report of Commission General background information Major Commission proposals Some implemented proposals ADMINISTRATION OF JUSTICE (Chapters VI to XI of the Report) Chapter VI Court organisation and staff, etc Introduction Retrospective look Current administration of justice system Assessment by the Commission of the current system Commission proposals Chapter VII Process agents, defence, attorneys and legal aid Process agents (civil proceedings) Defence Attorneys Legal aid Chapter VIII Provisions common to all legal proceedings, etc Introduction Court language Oral proceedings and the principle of immediacy Open trials Form of court rulings Court records Service of documents Witnesses Expert opinions Chapter IX Civil proceedings Introduction Rules of procedure Debt collection proceedings Legal costs court fees... 39

6 4 5. Exemption from court fees Chapter X Criminal proceedings Introduction Prosecution The defence in criminal proceedings Victim s procedural position General comments on investigation and coercive measures The individual measures Institution of criminal proceedings Criminal proceedings in court Judgment Chapter XI Appeal and reopening. Enforcement (proceedings) Appeal and reopening Introduction Appeal of judgments from courts of first instance Appeal to the Supreme Court Interlocutory appeal Exceeding time-limits Cross appeals Scope of the High Court review Principle of immediacy Enforcement proceedings (enforcement law) Introduction Authority Bases of enforcement Objections during the enforcement proceedings Attachment Injunctions Possession of mortgaged property Forced sales of real property and chattels CRIME, PRISONS AND PROBATION (Chapters XII to XVII of the Report) Chapter XII Crime Recorded crime extent and trends Causes of crime empirical correlations Causes of crime influencing potential Victims of crime Chapter XIII Crime prevention measures Introduction Retrospective look Current arrangement Commission deliberations and proposals... 65

7 5 Chapter XIV General provisions and the individual offences General deliberations General provisions Individual offences Chapter XV Sanctions General deliberations Presentation of individual sanctions Transfer and cessation of sanctions Chapter XVI Enforcement of sanctions Introduction Current arrangement Commission proposals on organisation and structure Enforcement of supervision sanctions Enforcement of prison sentences Staff and training consequences Capacity development after Chapter XVII Treatment of remand prisoners and other detainees Detentions Attendance on and treatment of detainees Probation work POLICE (Chapter XVIII of the Report) Chapter XVIII Police activities Introduction Current arrangement Studies Police complaints boards Assessment of police structure Changes proposed by the Commission CONCLUDING PART (Chapters XIX-XXVI of the Report) Chapter XIX Follow-up on Commission proposals Background Commission proposals Chapter XX Commission proposals for councils, committees, etc Chapter XXI Aggregate financial consequences Chapter XXII Transfer to Home Rule Background Deliberations of principles Advantages and drawbacks of transfer Consequences for particular fields of responsibility Consequences of isolated transfer of fields of responsibility

8 6 6. Financial consequences Chapter XXIII Administration of Justice Bill for Greenland with notes Chapter XXIV Penal Bill for Greenland with notes Chapter XXV Bill amending various provisions in connection with the entry into force of a new Administration of Justice Act and Penal Code for Greenland with notes Chapter XXVI Lists of literature and appendices

9 7 INTRODUCTORY PART (Chapters I to V of the Report) 1. Introduction The judicial system of Greenland differs markedly in several ways from the judicial systems of other countries. District judges, lay assessors and lay counsel (defence counsel) are lay locals and not lawyers (law graduates). Only when a case is brought before the appeal court, the High Court of Greenland [Grønlands Landsret], do legally trained prosecutors, judges and attorneys become involved. The judicial system is bilingual, both Greenlandic and Danish are spoken and written. Greenland does not have a penal system as known in Western countries either. Judges in criminal proceedings have a wide range of sanctions to choose between, laid down in a Penal Code [kriminalloven] prescribing no minimum or maximum penalties. Prisons are open, and to the extent possible inmates have to work outside the prison. Since the judicial system was designed half a century ago, the Greenlandic society has undergone quite an intense development. Society is far more complex now. One manifestation of this is the ever more comprehensive and complex legislation, which increases demands on the legal expertise of the judicial system. At the same time, the population has migrated from settlements and concentrated in towns, the old family patterns have changed, and the industrial development has been intensive. The large social changes resulted in a noticeable increase in recorded crime until the 1980s, whereupon it has generally fallen, although aggravated violence, sexual offences and homicide occur fairly frequently. The judicial system with pertaining legislation is one of the few areas that cannot pass to Greenland under the current Home Rule scheme. The Danish Parliament [Folketinget] still retains legislative power, and the administration is handled by Danish authorities. In 1994, in view of the changes in society, the Danish Government and the Greenland Home Rule [det grønlandske hjemmestyre] set up the Commission on Greenland s Judicial System [Den Grønlandske Retsvæsenskommission] chaired by Per Walsøe, Supreme Court Judge, and totalling 16 members appointed by the Danish Government and the Greenland Home Rule. The main task of the Commission has been to perform a thorough review and reassessment of the entire judicial system of Greenland and on that basis to make proposals for its possibly fundamental revision. 2. Terms of reference of Commission The terms of reference of the Commission are as follows: The Penal Code and the Administration of Justice Act [retsplejeloven] for Greenland have existed in a basically unchanged form for soon 40 and 30 years, respectively. These important laws for the Greenlandic society were drafted then in the light of the

10 8 social structure and the values and customs that characterised the Greenlandic society at that time. In the meantime, social conditions in Greenland have changed decisively in a number of fields. In view of this development and the debate following in its wake, a thorough review and reassessment of the entire judicial system in Greenland have become necessary. Deliberations on a new scheme should be made, as was the case with the existing scheme, with regard for the special Greenlandic conditions, including the traditions associated with Greenland s judicial system, and the national character of Greenlanders. Thus, it would still be desirable to maintain the original fundamental idea of the Penal Code with rehabilitation as the basis of criminal sanctions as well as its principles of extensive lay contribution to the administration of justice. Moreover, it should be ensured that Greenland s judicial system meets the international obligations incumbent on the realm, including particularly the human rights obligations. The work of such a thorough revision of Greenland s judicial system should be carried out by a special, broadly composed commission with representatives of the Greenlandic authorities as well as of the authorities of the Danish realm. The Commission will be appointed by the Ministry of Justice [Justitsministeriet] following negotiation with the Greenland Home Rule Government [Landsstyret] and with a composition as shown in the appendix. The Commission is requested to review and assess the current police authority in Greenland and suggest any changes required. Moreover the Commission shall review and assess the current Prison and Probation Service in Greenland [Kriminalforsorgen i Grønland], including probation and aftercare as well as prison facilities. In this connection the Commission shall consider and describe how to establish special prison facilities in Greenland so as to bring to an end the current arrangement for Greenlanders sentenced to safe custody, who serve in the Herstedvester Institution in Denmark, and the Commission may also propose further reforms in this field. In addition, the Commission is requested to review and assess Greenland s administration of justice system. In that connection the Commission shall make proposals for any changes building upon the good experience with the district judge scheme in Greenland. In connection with these deliberations, the Commission shall also prepare plans for the development of a system of training or courses for the various staff groups within the judicial system. The deliberations of the Commission may include a potential transfer of parts of the judicial system in Greenland, including in particular the Prison and Probation Service, to the Home Rule. It is assumed that the Commission will make proposals for the financ-

11 9 ing of the various tasks when assessing the financial and administrative consequences of such transfer. In connection with the above deliberations, the Commission is also requested to review and draft a revision of the Penal Code for Greenland in connection with its proposals, incorporating such amendments as are deemed necessary or desirable. In that connection the Commission should be aware of the debate on minimum and maximum penalties and types of sanctions in Greenland in recent years. Moreover, the Commission shall review and draft a revised Administration of Justice Bill for Greenland in accordance with its proposals, incorporating such further amendments as are deemed desirable or appropriate. In this connection, the Commission should be aware of the need to introduce statutory rules on exemption from court fees and free legal aid that can safeguard citizens access to the legal system, and of the potential for rationalising and improving the rules for or the practicalities of service of documents. Also the question of new rules on attorneys activities in the administration of justice in Greenland should be assessed in detail. It is assumed that the Commission will set up working groups to prepare contributions on the issues considered for submission to the Commission. Both the Commission and the working groups may involve experts and representatives of authorities or organisations in their work. It is furthermore assumed that the Commission will complete its deliberations within three to four years and that the Greenland Home Rule Government is suitably briefed on the work of the Commission. During its work, the Commission may make its preliminary deliberations known to a larger group of persons for example in the form of one or more seminars so as to gather their immediate reactions to the deliberations. The work of the Commission is no bar to the implementation of particularly urgent changes in some fields. In that event, the Commission may submit an advance report on such issues. The Ministry of Justice shall defray the expenses involved in the work of the Commission, including expenses for secretarial assistance and travel expenses. 3. Composition of Commission At the time of reporting, the Commission has the following members: Per Walsøe, Supreme Court Judge, Chairman Nukákuluk Kreutzmann, Director, upon recommendation by the Home Rule Government Sólja í Ólavsstovu, former Director, Home Rule Government Secretariat, upon recommendation by the Home Rule Government

12 10 Martha Labansen, the Association of Local Authorities in Greenland [Kanukoka], Director, upon recommendation by the Home Rule Government Mads B. Christensen, Police Inspector of the Office of the Chief Constable of Greenland [Politimesteren i Grønland], upon recommendation by the Police Association of Greenland [Grønlands Politiforening] Mille Søvndahl Pedersen, District Judge, the District Court of Nuuk [Kredsretten i Nuuk], upon recommendation by the District Judge Association of Greenland [Kredsdommerforeningen i Grønland] Anda Lynge, Lay Counsel, attached to the District Court of Aasiaat, upon recommendation by the Home Rule Government Elisæus Kreutzmann, Prison and Probation Service Manager, the Prison and Probation Service division for Greenland, upon recommendation by the Home Rule Government Finn Breinholt Larsen, Social Scientist, Aarhus County, upon recommendation by the Home Rule Government Thomas Rørdam, Supreme Court Judge, upon recommendation by the Council of the Danish Bar and Law Society [Advokatrådet] Søren Søndergård Hansen, High Court Judge, the High Court of Greenland Jørgen Meyer, Chief Constable of Greenland Gunnar Martens, former High Commissioner, upon recommendation by the Danish Prime Minister s Office [Statsministeriet] Jens Kruse Mikkelsen, Head of Department, the Danish Ministry of Justice Karsten Petersen, Chief Constable, the Office of the National Commissioner of Police, upon recommendation by the Danish National Commissioner of Police [Rigspolitichefen] William Rentzmann, Director-General, the Danish Ministry of Justice, Department of Prisons and Probation [Direktoratet for Kriminalforsorgen] The composition of the Commission at its appointment and the subsequent changes are described in chapter I of the Report. Various individuals from Greenland and Denmark have been attached to the Commission and/or its working groups as expert advisors. At the time of reporting, the following individuals were expert advisors: Jens Møller, District Judge, the District Court of Ilulissat Marianne Højgaard Pedersen, Supreme Court Judge Annette Esdorf, Deputy Director-General, the Danish Ministry of Justice, Department of Prisons and Probation The Home Rule Government and the Danish Ministry of Justice, including the Department of Prisons and Probation, have made a secretariat available, headed by Lise Kock, Deputy Prison Director. 4. Methodology of Commission The Commission has held 17 residential meetings, each lasting about one week, ten of which were held in various towns in Greenland. From the very beginning the Commission planned

13 11 its work so that three working groups together covered all of Greenland s judicial system. They are: The Administration of Justice Group, whose assignment has been to review and assess Greenland s administration of justice system and to draft a new Greenlandic Administration of Justice Bill. At the time of reporting, Martha Labansen chaired this working group. The Prison and Probation Group concerning the system of sanctions and the Prison and Probation Service, the main assignment of which has been to analyse and assess the system of sanctions and enforcement of sanctions in prisons and in the community and to draft a Penal Bill for Greenland. The chairman of this working group was William Rentzmann. The Police Group, which was entrusted with the task of analysing and assessing the police and its work, the general conditions of liability and offences stipulated by the Penal Code, and also of drafting such parts of the Administration of Justice Bill as relate to police activities. At the time of reporting, Jørgen Meyer chaired this working group. Several special assignment working groups have made recommendations that have formed part of the deliberations and proposals of the Commission. These groups are: A Debate and Information Group, whose task was to involve the Greenlandic community, not least the population, in a discussion on the judicial system and its conditions through public information and debates, an Educational Group, which was asked to prepare plans for the development of a system of training and courses for the various staff groups of the judicial system, particularly for district judges and defence counsel, a Research Group, whose task was to be in charge of and co-ordinate the concrete studies planned by the Commission, and via contacts to scientists interested in Greenland to seek to create a research environment in constant dialogue with the judicial system, a Settlement Working Group appointed to uncover the problems of the judicial system in the settlements (local bailiffs, detention needs), a Working Group for Establishing Central Translating and Interpreting Functions, to cover the courts and the High Commissioner, the police and the Prison and Probation Service, a Working group on the Introduction of Community Service as a new sanction in Greenland, a Working Group concerning Enforcement of Claims in Greenland, which has mapped enforcement proceedings and the division of such work between the judicial system and the Home Rule, and a Working Group on video questioning of children in sexual offence cases. The Commission and its members have also gathered information, experience, views and positions on the overall judicial system at meetings with specially invited individuals, by conference attendance, study trips, etc.

14 12 The preliminary deliberations and views of the Commission were presented and discussed at a two-day conference in Nuuk in March 1997 and a one-day conference in Copenhagen in December Both conferences were attended by representatives of the judicial system and the public as well as politicians. The conference papers and the conference results have been published. 5. Report of Commission The introductory part of the Report (chapters I to V) describes the terms of reference of the Commission and its composition and gives an overview of its methodology and proposals. This introductory part also includes general chapters (cf. section 6 below), which form the background of the following main parts describing the individual fields of justice. The main parts of the Report describe the administration of justice (chapters VI to XI), crime (chapters XII to XVII) and the police (chapter XVIII). All three areas have been revised in depth, both concerning organisation and legislative basis. Therefore the Report is so voluminous. The most important proposals are reproduced in section 7 below, and proposals already implemented in section 8. The concluding part comprises chapters on a follow-up on the Commission proposals (chapter XIX), a survey of proposed councils and committees (chapter XX), the financial consequences of the Commission proposals (chapter XXI) and the question of transfer to the Home Rule Government (chapter XXII). The bills with explanatory notes drafted by the Commission (chapters XXIII to XXV) as well as lists of literature and appendices (chapter XXVI) have been included at the end of the Report. Both draft bills (with explanatory notes) are very comprehensive according to the proposal. The Commission found it essential and especially more user-friendly that, to the extent possible, any doubt experienced by the judicial authorities in the exercise of their functions is included in the actual Administration of Justice Act and Penal Code. The Administration of Justice Bill thus includes new parts on police investigation (including coercive measures in detail), institution of criminal proceedings, the defence, court proceedings and appeal as well as court fees. The Penal Bill includes new parts on the organisation of the Prison and Probation Service and on sentence enforcement. Moreover, both legislative acts are subject to elaborate, joint revision. The Report is accompanied by a volume of appendices and this summary volume. 6. General background information 6.1. The Commission has prepared a detailed historical description of the origin and development of Greenland s judicial system (chapter II of the Report, Judicial system in general). The subjects discussed are the following:

15 13 The social conditions in Greenland since 1950 and the position of the judicial system (section 1); the Administration of Justice Act for Greenland genesis and development until appointment of the Commission (section 2); the Penal Code for Greenland genesis and development until appointment of the Commission (section 3); and a general description of the judicial system in 1994 at the appointment of the Commission (section 4) Activities to engender debates and provide information. The Commission sought to involve the Greenlandic community, not least the population, in debates on issues concerning the judicial system (chapter III, section 2, of the Report). This was accomplished by involving local leisure time boards; holding public meetings in connection with Commission or working group meetings; visiting various relevant institutions; publishing informative newspapers designed to engender debates; and participating in radio and television debates, and engendering such debates itself, to the extent possible Research reports. To provide more knowledge about various aspects of the judicial system in Greenland and the population s views of it, the Commission launched some scientific studies via its research group (chapter III, sections 3 to 5, of the Report). The studies are mentioned at the relevant places in the Report and this summary. The following studies have been published: At the District Court [I kredsretten] Population and Police [Befolkningen og politiet] Police Working Conditions [Politiets arbejdsvilkår] Prison, Supervision, Halfway House [Anstalt, Tilsyn, Pension] Recidivists [Flergangskriminelle] Study of Recidivism [Recidivundersøgelse] Crime in Greenland extent, causes and potential action [Kriminaliteten i Grønland omfang, årsager og handlemuligheder] 6.4. Certain multi-field problems have been presented as doors to understanding the conditions under which the judicial system in Greenland works (chapter IV of the Report). The problems have been thoroughly discussed at the relevant places in the Report and this summary. They are: General problems Language (cf. just below) Settlements Transfer to Home Rule Human rights Significance of Danish law

16 14 Particular problems concerning legal proceedings Lay persons/law professionals Personal non-involvement Legal aid Customary law Particular problems concerning crime Crime prevention Crime victims Offender principle Conflict resolution methods 6.5. Language. The Commission has had to pay particular attention to language in the judicial system (chapter V of the Report). Great difficulties are involved when most of the players in the judicial system district courts, police and the Prison and Probation Service speak Greenlandic and some Danish, while another essential group of players in the judicial system the Chief Constable and his lawyers, the High Court judge and his lawyers, appeal instances and other authorities in Denmark speak Danish. This has resulted in a number of time- and resource-consuming language reforms which have already been accomplished and will be accomplished in future by virtue of the Commission proposals. They are: Transcripts of judgments and indictments must be prepared also in Greenlandic where necessary. More legal documents must be translated into Greenlandic where necessary. Statements in court must be entered in the court record in the language spoken. Efforts are being made to make it possible in future to prepare all legal documents and make all statements in Greenlandic where necessary. All judicial authorities must give substantial emphasis to bilingual skills at new appointments and courses in written Greenlandic. Lists of legal concepts, etc., must be prepared and maintained in Greenlandic. Central translating and interpreting services must be established to serve the courts as well as the rest of the judicial system and the High Commissioner s Office [Rigsombudet].

17 15 7. Major Commission proposals The Commission proposes the following court system: Supreme Court [Højesteret] Third instance upon leave from the Board of Appeal [Procesbevillingsnævnet] High Court of Greenland appeal instance in all cases Local district courts First instance Court of Greenland trained district judges professional judge equal standing entire Greenland Retention of the present division into judicial districts. Establishment of training scheme for authorised district judges. Permanent employment of district judges. Determination of number and location of district judges on the basis of case load, nature of district and traffic conditions. A lawyer-based court of first instance, the Court of Greenland [Retten i Grønland], to deal with legally complex cases and to handle training of and guidance to district judges. The High Court of Greenland solely to hear appeal cases in future (second-instance cases). In cases determined at first instance by the professional court, the High Court must be staffed by two Danish High Court judges assigned in advance by the Presidents of the High Courts of Eastern and Western Denmark [Østre og Vestre Landsret], respectively. A Council of Judges [Dommerråd] to consider cases of dismissal of district judges and to assist in the appointment of district judges. Defence Strengthening of the defence by specifying the role of defence counsel and extending it to include the time also prior to institution of criminal proceedings. Establishment of training scheme for the current lay counsel as authorised counsel. Access for authorised counsel and other counsel to telephone guidance from an attorney via the hotline already established. Possibility of assigning an attorney as an out-of-court advisor to the lay counsel appearing before the district court in aggravated cases. Possibility of assigning attorneys to be defence counsel and to appear before the district court in certain very aggravated cases. Establishment of a position as either public or private national defence counsel to safeguard an adequate defence, including to be in charge of training of and guidance to defence counsel and to supervise their activities. Offences and administration of criminal justice Revision of the Penal Code provisions on offences.

18 16 Thorough reform of rules on coercive criminal justice measures. Administration of justice in general Introduction of court fees (for civil and enforcement proceedings) as well as rules on exemption from court fees and service of legal notices. Statutory rules on attorneys activities. Setting up of a nationwide legal aid scheme, to the extent possible manned by attorneys. If at all possible, parties to be present at court proceedings for immediate production of evidence, possibly by means of video conferencing equipment. Professionalisation of civil proceedings. More cases to be determined on the basis of a trial than at present. Crime and crime victims Establishment of a statutory crime prevention council to strengthen and co-ordinate crime prevention efforts. Special efforts in favour of victims, including the establishment of a national network of victim assistance centres, coordinated by the Department of Social Services [Socialdirektoratet]. Obligation for the police and the court to inform, counsel and assist victims, including to offer the victim a support person during questioning, to ensure the equal treatment of the compensation proceedings and the criminal proceedings and in certain cases to assign a victim advocate to the victim. System of sanctions A system of sanctions built on elements from both the offence and the offender principles. Treatment and control must be of equal importance. Introduction of the following sanctions, ranked according to severity on a sanction ladder: Caution (new sanction) Fine Suspended sentence with fixed sanction period (new sanction) Sentence of supervision Community service sentence (new sanction) Prison and supervision sentence (new sanction) Prison sentence Safe custody sentence (indeterminate placement) When choosing the sanction on the sanction ladder, the judge must take into consideration the gravity of the offence, etc. Each rung of the ladder must provide offers of treatment. Introduction of special sanctions for young and mentally ill criminals.

19 17 Graphic model of the sanction ladder: Safe custody Prison Supervision Community service Prison and supervision Fine Suspended prison Caution Prison and Probation Service Establishment of a unified management of the Prison and Probation Service covering prisons as well as local probation offices, supervision and after-care. The proposed enforcement authority organisation looks as follows: Management of the Prison and Probation Service Prisons Probation Offices Halfway Houses Establishment of central and local cooperating bodies for co-ordinating and rationalising the aggregate efforts against crime, including the Prison and Probation Service, the other judicial authorities and social, health and labour market authorities. Presence and rationalisation of the supervision function of the Prison and Probation Service in all municipalities. Prompt reaction to breach of conditions by the use of arrest, detention and other measures. Prison system with open units as so far. However, all prisons must provide a semi-closed regime for offenders who have committed serious offences against the person. Construction of an open prison at Tasiilaq. Establishment of a closed disciplinary unit in Nuuk Prison for offenders who do not observe the conditions for placement in open units or under a semi-closed regime. Establishment of a closed safe custody unit in Nuuk Prison for dangerous offenders so far placed in Herstedvester Prison.

20 18 The Commission proposes a prison system with 84 places divided between the individual prisons as follows: Nuuk 54 places Qaqortoq 10 places Aasiaat 10 places Tasiilaq 10 places open unit open unit open unit open unit semi-closed regime semi-closed regime semi-closed regime semi-closed regime closed disciplinary unit closed safe custody unit Comment: Concerning capacity development in 2002, see chapter XVI, part 1.8. Establishment of various treatment options during incarceration/supervision (against abuse of alcohol and drugs, sexological and corrective behavioural treatment, training, etc.), which implies appointment of new professional groups (psychologists, psychiatrists, social education and welfare workers, etc.). Police Establishment of a new police district in Kangaatsiaq. Establishment of a police complaints board. Increase of the police force from 115 to 125 persons. Follow-up on Commission proposals Statutory establishment of a Council for Greenland s Judicial System [Råd for Grønlands Retsvæsen] for follow-up on the reforms of the Administration of Justice Act and the Penal Code.

21 19 Transfer to Home Rule Description of the consequences, including advantages and disadvantages of full or partial transfer of the judicial system to Greenland. 8. Some implemented proposals The following describes major proposals implemented or launched at the time of reporting. On language Essential legal documents are prepared in both Greenlandic and Danish unless it is known positively that the citizen is fully bilingual. Transcripts of judgments are also prepared in Greenlandic, if necessary. Experiments with entering statements, etc., in the record in the language spoken. The Commission and the Greenlandic Language Council [Det grønlandske Sprognævn] have cooperated on the publication of a Greenlandic Glossary of the Penal Code, the Administration of Justice Act, etc. [Terminologiliste over kriminallov, retsplejelov m.m.], which lists various legal concepts. The legal glossary must be updated regularly. Two trained translators and interpreters have been employed by the Chief Constable and placed at the High Commissioner s Office as the first staff of a central translating and interpreting service. On courts and the administration of justice The guidance division of the High Court has been strengthened and separated from the appeals division. Training for district judges and lay counsel has been initiated. Lay counsel can get telephone guidance from a law firm in Nuuk via the hotline. Lay counsel can get more comprehensive guidance from an attorney in aggravated criminal proceedings. Experiments with training of district judges. Experiments with training of lay counsel. Experiments with the use of video conferencing equipment. On the sanction system and the Prison and Probation Service Statutory authority for transfer/stationing of Greenlanders sentenced to safe custody at the Herstedvester Prison to a prison in Greenland with a view to release in Greenland later. New rules for guardians assigned to offenders who have been sentenced to an indeterminate sanction. Study of the possibility of introducing a community service sentence as a new sanction. Experiment with organised efforts for victims (victim assistance centres). Partial extension of the supervision activities of the Prison and Probation Service. Improved training of prison officers.

22 20 On the police Training of local bailiffs and auxiliary police officers. A statute on the hearing of complaints and criminal proceedings concerning police staff in Greenland (police complaints boards). Follow-up A chair in Greenlandic sociology of law has been created and filled at the University of Copenhagen, Faculty of Law [Københavns Universitet, Det juridiske Fakultet]. It is affiliated with the University of Greenland [Grønlands Universitet] in Nuuk.

23 21 ADMINISTRATION OF JUSTICE (Chapters VI to XI of the Report) Chapter VI Organisation and staff of the judiciary 1. Introduction One characteristic of the administration of justice system in Greenland is that the courts of first instance, the district courts, are purely lay courts. This system was introduced with the adoption of the 1951 Administration of Justice Act, and then, as now, most proceedings fall with the jurisdiction of the district courts. District court decisions are made by the local district judge as the presiding judge and two local lay judges, none of whom has any legal or other specialist training. One of the absolutely central questions to the Commission in the choice of a future system of administration of justice was whether the judges of the courts of first instance were to remain non-lawyers, or whether all judgeships should be filled with lawyers. This chapter describes these deliberations, which have resulted in the Commission s recommendation to maintain that district judges need not be lawyers. 2. Retrospective look A retrospective look shows that these deliberations are not new. The current Administration of Justice Act has been amended regularly, but the fundamental wish for court decisions to be made by lay judges has always been maintained. Act No. 271 of 14 June 1951 on the Administration of Justice in Greenland entered into force on 1 December 1951 and has thus applied for about half a century. The reason why Greenland got its own Administration of Justice Act was the wish to have a system suitable for an extremely large geographical area with a small and very dispersed population. Another wish was to place all citizens, Danes and Greenlanders, on an equal footing and enable everybody to understand both the language and contents of the legal proceedings. Therefore a district court was set up in all municipalities, where decisions were to be made by persons of the local community, that is, by laymen. As is evident, the current administration of justice system is characterised by a principle of proximity. Citizens are served locally, and district judges are recruited among the locals. They therefore belong to the local community and know the language, the culture and the population of the district. This ensures what is called the Greenlandic element of the administration of justice. This is of great importance due to the differences of language, society and culture that apply, not only between Denmark and Greenland, but also between the different regions of Greenland.

24 22 As part of the court system in Greenland, the High Court of Greenland, which is a court chaired by lawyers, was established at the same time as the district court system. This was to ensure a professional review of district court decisions on appeal. It was also decided, as a safety net under the lay judge system, that the High Court was to act as the first instance in certain cases and take over particularly complex cases from the district courts. The head of the High Court, the High Court judge, was also charged with providing legal support to the district courts in the form of guidance and assistance in questions concerning the exercise of their judicial powers. This obligation imposed on the High Court judge by the Administration of Justice Act to provide guidance to the district courts has been extensively exploited by the district judges. Originally the guidance was intended to be of a general nature. Over the years, however, a firm practice evolved where district courts procured guidance for use in individual cases. So far there has been no formal procedure for the guidance or the training of newly appointed district judges or clerks. They have typically received a brief introduction to the work from the rest of the staff, whereupon they have had to seek knowledge through practical experience and general guidance. Throughout all the years, both district judges and clerks have expressed a desire for further training and guidance. In 1995, at the Commission s initiative, the High Court was divided into a trial division and a guidance division. The purpose of this division was partly to counteract the potential concern arising when appeals are heard by the same instance as is in charge of guidance, partly to strengthen the guidance and training of district court officials. Altogether, a large number of initiatives have been launched to strengthen the professional skills of both district judges and clerks, such as more frequent visits, courses and written guidance. As a special initiative, a pilot scheme on the training of district judges has been completed. 3. Current administration of justice system In addition to the district courts, Greenland s current administration of justice system comprises the appeal instances: the High Court of Greenland and the Danish courts, the High Court of Eastern Denmark and the Supreme Court. As mentioned above, the majority of all proceedings are heard by the district courts at first instance. This applies to both civil and criminal proceedings. However, according to legislation, certain proceedings fall within the jurisdiction of the High Court of Greenland as the court of first instance. Moreover, the Greenland Parliament [Landstinget] may lay down rules in fields falling within Home Rule. In addition, the High Court judge may allow the High Court of Greenland to take over a case for first-instance hearing if legal or other special insight is deemed to be of importance in the determination of the case.

25 23 A case determined by the district court can be appealed to the High Court of Greenland without restrictions. A case determined by the High Court of Greenland at first instance can be appealed to the High Court of Eastern Denmark without restrictions. The Supreme Court acts as the third instance for decisions made by the High Court of Greenland at second instance, and for decisions made by the High Court of Eastern Denmark. Appeal to the Supreme Court is subject to leave from the Board of Appeal in Denmark. The district courts each cover a judicial district defined by the municipal boundaries. Each judicial district has a town where the district court customarily sits and one or more settlements where the district court sits when on its regular circuit. Each district court has a district judge. Nuuk, however, has two district judges, and the district judges of Aasiaat [Egedesminde] and Paamiut [Frederikshåb] are also district judges of Kangaatsiaq and Ivittuut, respectively. The 18 judicial districts are staffed by a total of 17 district judges. All district court proceedings are heard by the district judge as the presiding judge sitting with two lay judges. The district judges are appointed by the High Court judge of the High Court of Greenland for four years at a time and can be reappointed. Lay judges are elected by the local council upon recommendation by the High Court judge. Such elections are also valid for four years at a time with a possibility of re-election. The office of district judge or lay judge is a civic duty and therefore involves no employment as such with the judiciary service. Consequently, district judges and lay judges typically have their main occupations elsewhere and primarily come to the district court in connection with scheduled hearings. No particular educational qualifications are required, only that they must be of unblemished reputation and satisfy the conditions for eligibility for the local council, and they should also normally be appointed among the population of the place where the court sits. Each district court employs one or more clerically trained court clerks whose permanent presence is a prerequisite for the proper functioning of the scheme with the district judge office as a civic duty. In practice the district court clerks have a very large field of responsibility and handle a large number of independent tasks. When the district court system was established, the case load was quite modest. It was therefore expected that the work as district judge could be carried out without problems as a civic duty beside another job, and partly in the judge s spare time. However, the work load and the demands made on the district courts have changed much over the years, resulting in an ever increasing need for secretarial assistance and a need for considering whether the office of district judge can still be carried out as a civic duty beside another job and partly in the judge s spare time.

26 24 The case load of the district courts of Greenland varies considerably, but is significantly lower anyway than that experienced in Denmark. This is a natural consequence of the small population in Greenland as well as the division of the country into 18 judicial districts. Decisive factors for the workload of the individual district courts are not only the number and types of cases, but also the number of settlements comprised by the judicial district, including their location and the traffic conditions that apply to circuits to the settlements. These and other special conditions make it impossible to assess the staffing need, etc., at the courts of Greenland on the basis of case statistics alone, nor is it possible to make a direct comparison with conditions at Danish courts. However, the limited case load implies that several of the present district courts cannot provide full-time employment for a district judge. Like the High Court of Eastern Denmark and the Supreme Court, the High Court of Greenland covers the entire country. The High Court of Greenland has its permanent seat in Nuuk, but may sit everywhere in the country in connection with its circuits. The High Court of Eastern Denmark and the Supreme Court sit in Copenhagen, although the High Court of Eastern Denmark sits in Nuuk once a year. The High Court of Greenland is presided over by a High Court judge who must be a lawyer and who is appointed by the monarch. The High Court also employs several lawyers who can exercise the functions of the High Court judge in his place. High Court cases are heard by the High Court judge or another lawyer as the presiding judge, sitting with two lay judges. The lay judges of the High Court are elected by the Greenland Parliament upon recommendation by the High Court judge and on the same terms as lay judges at the district courts. Greenland s judicial system and its pertaining legislation is one of the fields that cannot pass to Greenland under the current Home Rule scheme. The work of preparing legislation lies with the Ministry of Justice, and the power to pass legislation still lies with the Danish Parliament. The administration is handled by the Danish Court Administration [Domstolsstyrelsen]. 4. Assessment by the Commission of the current system Both before and in connection with the work of the Commission, the professional level of the district courts, particularly the lay district judges, has been criticised by several parties. The district judges themselves have also repeatedly expressed a desire for further guidance and training. This criticism must be seen in the light of the rapid development which the Greenlandic society has undergone and still undergoes, resulting in comprehensive and increasingly complex legislation. A consequence of this development is that the district courts face ever more complex problems making increased demands on the judges professional insight and knowledge.

27 25 In the light of this criticism, among other things, the Commission launched a study of the users perception and understanding of the district courts and their activities. The report At the District Court by Helene Brochmann shows that the population is in fine harmony with the district courts. The parties attitude to the district courts is positive and marked by respect. Cases are being heard and decided in a way that is understandable to the parties. However, the report also suggests several improvements of, for instance, the information to citizens brought before the district court. Moreover, it has been difficult to find and retain suitable persons as district judges. One of the problems has been that the persons considered suitable did not want to undertake the task. There are many causes of the large turnover among district judges. It has been emphasised that it was difficult both to discharge the task and to hold down another job. The work has been felt as entailing too heavy responsibilities, it has been poorly paid, and the requisite support and training have not been given before appointment. Similar recruiting and retaining problems have applied to district court clerks. Recruitment of lawyers for the High Court of Greenland has also been difficult. With a single exception, all lawyers at the High Court of Greenland so far have been Danes. It has been almost impossible to recruit among the few Greenlandic lawyers. Subsequently, Greenlandic lawyers have been trained, but their number is still limited, and there are no signs of more within the next few years, particularly not lawyers who are also fluent in Greenlandic. However, to the deliberations whether judges of courts of first instance should be lay people or lawyers in future also comes the formal question whether a court within the meaning of the Danish Constitution or the European Convention on Human Rights may consist solely of laymen. To answer this question, the Commission has procured opinions from the Danish Ministry of Justice and the Danish Centre for Human Rights, and based on these opinions the Commission finds that neither the Constitution nor the European Convention on Human Rights is a bar to a system of lay district judges. 5. Commission proposals The Commission has worked out and assessed several models of designing the future system. The good experience with the district judge system is directly connected to the proximity principle that has so far characterised Greenland s judicial system in the form of the local presence of the courts and their special insight into local and general conditions in Greenland, not least the Greenlandic language. A system with lawyers as district judges will make it impossible to keep the natural advantages mentioned above. This is due not least to the language problems. The advantages of a lawyer-based system thus consist first and foremost in the achievement of the professional expertise implied by a university law degree.

28 26 It is proposed that the courts of first instance the district courts should still have a local presence and that staff, including district judges, should be recruited among the local population. However, a significant professional strengthening of the district courts is required to meet the needs of the modern Greenlandic society. Professional strengthening is to be obtained in future by having district judges complete a special district judge training programme and then employing them in permanent positions. The district courts should also still be given general and specific guidance. As so far, certain cases should be heard by a court of first instance presided over by lawyers. In addition, if possible, district judges and court clerks should receive a higher salary and better premises that ensure a dignified setting for the judicial proceedings. Moreover, it may be possible to ensure a stronger legal basis by trying to place several district judges together. At the same time, however, a majority of Commission members emphasise that the district court should still have a local presence and that, to the extent possible, each town should have a permanently resident district judge also in future. As a result of the real-life situation, these regards cannot all be accommodated. A majority of Commission members: Mads B. Christensen, Nukákuluk Kreutzmann, Elisæus Kreutzmann, Martha Labansen, Anda Lynge, Gunnar Martens, Jens Kruse Mikkelsen, Sólja í Ólavsstovu, Mille Søvndahl Pedersen, Karsten Petersen, William Rentzmann and Per Walsøe, have prepared a proposal for a future district court structure on the basis of a concrete balancing of the conditions applicable to the individual regions and judicial districts, the essential features of this proposal being that all 18 judicial districts will be maintained and that 11 of them will have a resident district judge. A one-member minority of the Commission: Søren Søndergård Hansen, proposes a regionalisation of the district court structure in the form of a merger of judicial districts. The purpose is to create a system as flexible as possible in order to ensure a higher professional quality of district court decisions and better utilisation of resources. Another minority of Commission members: Finn Breinholt Larsen, Jørgen Meyer and Thomas Rørdam, support the majority model with the 18 judicial districts. However, this minority believes that it may become necessary to aim at some form of regionalisation at the implementation of the district judge system. The Commission proposal of permanent employment of the district judges implies a special need to ensure the independence of district judges, cf. in this respect the provisions of the Constitution and the European Convention on Human Rights. It is therefore proposed to grant district judges security of tenure and to establish a Council of Judges to handle a number of tasks concerning the employment and dismissal of district judges in future.

29 27 In connection with implementation of the Commission proposal on a special district judge training programme as a condition for permanent employment as a district judge, transition schemes must be prepared to ensure the functioning of the judicial system in a transitional period by retaining the present district judges. To further enhance the quality of the administration of justice, the Commission also proposes the establishment of a court of first instance sitting with lawyers as judges (the Court of Greenland) to handle the guidance and training of district judges, etc., in addition to the hearing of cases from all Greenland. The district courts should be able, upon specific assessment, to transfer cases rightly coming within their jurisdiction to the Court of Greenland at first instance. An independent professional court of first instance will furthermore allow all appeal cases to be heard by the High Court of Greenland. This will also make Greenland s judicial system even more independent, as it will no longer be necessary to send cases out of the country. One advantage of this is that Greenlandic lawyers can be employed in central positions at both the professional court of first instance and the High Court of Greenland with a possibility of gradually taking over the lawyers positions in the judicial system, thereby further reducing the dependence on the labour of lawyers coming from outside the country. The ordinary courts will then be: the district courts, the Court of Greenland, the High Court of Greenland and the Supreme Court. The district courts and the Court of Greenland will jointly handle court functions at first instance, while the High Court of Greenland will be second instance exclusively, and the Supreme Court of Denmark will be the third instance as so far. According to this proposal, the High Court of Eastern Denmark will thus no longer form part of the administration of justice system of Greenland. The Court of Greenland is to cover the entire country and be presided over by a judge who is a lawyer and is appointed by the monarch under the same rules as those applicable to appointment of judges in Denmark. Moreover, a suitable number of lawyers must be employed to exercise the judge s functions as decided by him. The Court of Greenland is to sit in Nuuk, but must otherwise be able to sit where the parties and witnesses are. Right of appeal from first to second instance must be unrestricted, as so far, so appeal is always possible from the district courts and the Court of Greenland to the High Court of Greenland, while appeal to the Supreme Court still requires leave from the Board of Appeal. As usual, lay judges are to assist the Greenlandic courts, but with certain changes. Criminal proceedings before the district courts, the Court of Greenland and the High Court of Greenland will be adjudicated with the assistance of lay judges except in minor cases. As regards civil actions, it is proposed only to require lay judges if the judge or one of the parties so requests. Accordingly, lay judges are only to assist in the hearing of civil appeals before the High Court of Greenland if lay judges assisted in the adjudication at first instance.

30 Chapter VII Process agents, defence, attorneys and legal aid 1. Process agents (civil proceedings) 28 According to the Administration of Justice Act, any good person may appear for any plaintiff and defendant in civil proceedings, if the person appearing is at least 18 years old and provided with an adequate written power of attorney. The Commission proposes that the right to appear as a process agent should apply to any legally competent person of unblemished reputation over the age of 18. One of the reasons for the proposal to maintain the current system is that there is still no general access to professional legal assistance in the individual towns. 2. Defence According to the Administration of Justice Act, any legally competent person of unblemished reputation can be assigned as lay counsel. Everybody is thus entitled to appear as lay counsel. In Greenlandic, the designation defence counsel [forsvarer] is applied to the person who assists the defendant in criminal proceedings. In Danish, by contrast, the term used to designate such person in Greenland is lay counsel [bisidder]. Lay counsel in criminal proceedings before the district courts are almost exclusively laymen who make their assistance available from case to case as a secondary job. Lay counsel have not previously received any legal training, but have been left to gaining their knowledge through practical experience. Moreover, they have not been organised in any way. Attorneys usually only appear as counsel in criminal cases appealed to the High Court of Greenland, and in a number of cases before Nuuk District Court. Also lawyers working with the Home Rule administrative authorities and the government as their main employment appear as counsel. The system of lay counsel has been subject to criticism by the public, not least from Danish attorneys. According to the critics, the use of lay counsel is unjustifiable for due process reasons and also contrary to the requirements of the European Convention on Human Rights of an adequate defence. In view of criticism such as this the Commission has considered whether the use of lay counsel is to remain the basis of the defence before the district courts. One of the points emphasised in this assessment is that no Greenlandic lawyers are available to handle the tasks of the present lay counsel. Moreover, the relatively few attorneys now practising law in Greenland are almost all resident in Nuuk, and it will be difficult or impossible for them to perform the functions of all local lay counsel. In addition, most attorneys do

31 29 not possess the special qualifications held by lay counsel, viz., mastering the Greenlandic language and having an insight into local Greenlandic conditions. Upon an overall assessment, the Commission finds that the future system for the defence in criminal proceedings before the district courts should still be based on local lay counsel. However, the professional standard of the system should be substantially strengthened. To mark this, it is proposed to replace the term lay counsel with the term defence counsel also in Danish. This change is to emphasise that the task of the persons involved is not only to provide general support and guidance to the suspect or defendant, but to provide a defence in terms of both the question of guilt and the choice of sanction. To generally strengthen the defence, it is proposed to introduce an authorisation scheme intended to ensure that only laymen with sufficient professional qualifications are entitled to appear as defence counsel. The grant of authorisation is to depend on the individual layman s participation in a special defence counsel training programme to be completed by passing a test. During the autumn of 2000, the first class of lay counsel completed the training programme with a final examination. To strengthen the defence in the individual case, a hotline scheme with a law office in Nuuk has been introduced at the initiative of the Commission. Lay counsel can contact this office at any time with a request for guidance in a specific case. It is proposed to maintain this scheme in an expanded form, cf. just below. The Commission finds it necessary, however also after the experience of the first pilot project of lay counsel training that the defence be further strengthened as soon as possible by the establishment of a position as either public or private national defence counsel [landsforsvarer] charged with the task of safeguarding an adequate defence, including to be in charge of the training of and guidance to defence counsel and to supervise their activities. Such a scheme would confer on the defence a position that will place it on the same professional level as the prosecutors, who for many years now have been local police officers trained and guided by the Chief Constable s Office. The national defence counsel is to be in charge of the defence counsel training required to obtain authorisation as defence counsel and is to take over the hotline as part of his guidance to the defence counsel. The position as national defence counsel can be established either as an independent office, possibly for a term of years, or as a private attorney attached to a law firm with its inherent possibilities of professional development. It should be possible in certain cases, in addition to the lay, authorised defence counsel, to appoint an attorney or other lawyer who will give the defence counsel out-of-court advice on the conduct of the case, but who is otherwise not supposed to appear in the case. The difference from the hotline is that the files of the case will be sent to the lawyer and it will be compulsory to consult the lawyer. However, the responsibility for and the decisions concerning the conduct of the case will still rest with the lay, authorised defence counsel. By the High Court judge decision, this scheme is also used already to some extent at the district courts.

32 30 Finally it is proposed that the defence counsel has to be an attorney or another lawyer, also before the district courts, in a few, very special aggravated cases, such as a complex case of homicide. It is assumed that the defence counsel system at the courts sitting with lawyers as judges, that is, the Court of Greenland and the High Court of Greenland, will continue to be based mainly on attorneys or other lawyers. 3. Attorneys When the Administration of Justice Act was introduced, attorneys were unknown in Greenland, and the Administration of Justice Act therefore has no rules on attorneys activities. Nor are attorneys activities governed by any other special legislation. According to the Danish Administration of Justice Act, the title of attorney [advokat] is a protected title. But in Greenland, the title of attorney enjoys no protection, and no formal rules for good attorney practices, etc., apply. Since the end-1960s when the first Danish attorney started practising law in Greenland, their number has gradually risen. When the first attorney came to Greenland, the High Court Judge s Office and the attorney in question made a gentlemen s agreement according to which the attorney would not appear before the district courts although the Administration of Justice Act authorised it and still does. However, over time a practice has evolved at the Nuuk District Court according to which the attorneys appear, most frequently as process agents in civil proceedings, but gradually also as counsel in criminal proceedings. The Commission proposes that the same rules should be introduced for attorneys and their activities as in Denmark, including administration of the attorney authorisation scheme by the Minister for Justice. The attorneys in Greenland will also become members of the Danish Bar and Law Society and the Danish disciplinary authorities applicable to attorneys and thus become subject to the same rules for hearing of fee complaints and disciplinary cases as the other members. Concerning attorneys right to appear before the courts, the Commission proposes a system under which all attorneys of the realm are to have free access to appear before the Greenlandic courts, but can only be assigned to appear before the district courts in special cases. To ensure that the courts can assign an attorney, the Commission proposes that, as far as possible, an assignment scheme similar to the Danish one be introduced according to which, upon application, the Minister of Justice appoints a suitable number of attorneys with offices in

33 31 Greenland willing to accept assignment. Only attorneys appointed under the scheme will have a duty to accept assignment. Court-assigned attorneys will have a duty to provide legal aid. 4. Legal aid There is no legal aid institution in Greenland. However, according to the Administration of Justice Act, it is incumbent on the authorities to guide the plaintiff concerning the drafting of the writ of summons, and the district judge has a duty to seek to complete inadequate writs of summons and guide the parties on the claims, allegations and submissions and potential evidence. Developments in society and the increasingly complex legislation, not least within public law, have engendered a large need for the citizens to be able to seek guidance in legal matters. The Commission proposes that court-assigned attorneys should have a duty under the Administration of Justice Act to provide legal aid to impecunious citizens. According to the proposal, legal aid should only be offered to private individuals who satisfy the financial conditions for court fee exemption according to the proposed rules to that effect.

34 Chapter VIII Provisions common to all legal proceedings, etc. 1. Introduction 32 The Administration of Justice Act for Greenland has a number of rules that apply to all types of court proceedings. These rules involve matters such as the court language, court records, court management, open trials, service of documents and witnesses, oral proceedings and the principle of immediacy in the administration of justice. The rules were introduced by the 1951 Administration of Justice Act and have not been amended since or only to a very limited extent. In that light, the Commission has reviewed current law to identify the areas deemed to require up-dating. 2. Court language It appears from the current Administration of Justice Act that the court languages in Greenland are Greenlandic and Danish, and that both languages can be used by and before the courts. This provision is based on recognition of the fact that Greenland has been and still is a bilingual society and that it was not considered possible to prefer either Greenlandic or Danish as the court language. As assessed by the Commission, this situation cannot be expected to change noticeably in the coming years. The Commission thus finds that the Administration of Justice Act must also in future be based on Greenlandic and Danish as the court languages of Greenland and therefore does not propose any amendment of the most important court language provisions of the Administration of Justice Act. It has been fundamental to the Commission that the language normally used in proceedings is Greenlandic if the parties are Greenlanders or, where this cannot be achieved directly, then to ensure the availability of the most efficient and adequate translation possible. Efforts have concentrated on launching schemes able to remedy any problems as rapidly as possible in relation to the use of Greenlandic and in time to contribute to a final solution. Against that background, it is proposed that, to the extent possible, translations should be made by a trained translator or interpreter. Naturally, such an arrangement presupposes the availability to the court of the requisite qualified translating and interpreting assistance. This matter is discussed in more detail in chapter V, section 5, of the Report.

35 33 3. Oral proceedings and the principle of immediacy The principles of oral proceedings and immediacy in the administration of justice should be observed to the widest extent possible according to the Commission. In Greenland the large distances and difficult traffic conditions often make it impossible to have the parties of the proceedings and witnesses present at the same hearing so that all the evidence can be produced immediately before the adjudicating court. In that connection the Commission has considered the possibilities of using video conferencing equipment in the administration of justice, and in 1996 it recommended a pilot project on the use of such equipment at the courts in Greenland. The High Court judge has subsequently had video conferencing equipment used in several cases. It is proposed to insert a provision in the Administration of Justice Act stipulating that proceedings are oral and that writing may only be used to the extent specifically authorised by law. Based on the experience from the pilot project with video conferencing equipment, express authority to use video conferencing equipment should be inserted in the Administration of Justice Act. 4. Open trials The principle of open trials is considered one of the most important procedural principles. The Administration of Justice Act thus provides that court hearings are open to the public. In the light of the corresponding provisions of the Danish Administration of Justice Act and the European Convention on Human Rights, the Commission finds that another and more detailed wording should be made of the Administration of Justice Act provisions on open trials. The rules on hearings in camera and prohibitions against disclosure of names or reporting should be worded so as to specify, to a wider extent that at present, in what cases the various restrictions of open trials may occur, and it is also proposed to introduce a rule of proportionality in the Administration of Justice Act according to which no decision on in camera hearings can be made if a prohibition against disclosure of names or reporting must be deemed sufficient. In addition, the Commission proposes to amend the Administration of Justice Act, improving mass media access for correct and adequate coverage of court proceedings. 5. Form of court rulings The Administration of Justice Act for Greenland has no provisions referring to or more generally governing the form of court rulings.

36 34 The Commission finds that the future amendment of the Act should include a final determination of the form of court rulings and their designations, and efforts should also be made in general, in view of the lay element of the administration of justice, to make the system concerning the form of court rulings as clear and simple as possible. Moreover, a duty to state reasons must be introduced for rulings in cases where the orders are issued in Denmark. This means that all court rulings will have to be made in the form of judgments or decisions. The word order [kendelse] is not part of the administration of justice in Greenland and has not been introduced in the amended text. Instead it is specifically stated which decisions should state reasons. In that connection it has been emphasised that the regard for keeping a simple and transparent system favours retention of the well-known terms which will then be: judgment [dom] and decision [beslutning] (with and without reasons). 6. Court records An important procedural tool for courts when they conduct hearings is the court record, which has to provide a record of all matters of importance carried out by the court in the individual case. It is therefore proposed to introduce rules on these matters in the Administration of Justice Act. A statutory right for the parties to a case and other interested parties to demand a transcript of the court record and the documents produced to the court should be introduced. 7. Service of documents In criminal proceedings, documents are served by the police or the local bailiffs, and in civil proceedings by writ servers assigned by the Chief Constable, normally also police officers. For several years the courts have criticised the delay in service of documents. The Commission has therefore assessed how the practicalities concerning service of documents can be rationalised and improved. The Chief Constable should still be responsible for assigning writ servers, and service should be performed, as so far, by the police and local bailiffs as well as by writ servers assigned by the Chief Constable, and it is expected that police officers will also in future appear as assigned writ servers. The Commission proposes that new forms of service be introduced to facilitate the pressure, particularly on the writ servers, that the requirement of service be restricted to court notices where it is necessary to establish whether the recipient has received the notice in the prescribed way, that the courts be guided into making as much use as possible of forms of service and notices that do not involve police and writ servers, that existing standard letters and notices be subject to a revision, that police officers and writ servers should receive more detailed instructions on the performance of their serving work, that particularly the work of writ servers be subject to a more extensive control, and that it be considered whether, to increase

37 35 motivation, there is a basis for a somewhat larger payment per service or attempted service than is currently granted. 8. Witnesses 8.1. Duty to give evidence geographical delimitation. Under the current witness rules, the duty to give evidence is normally geographically delimited to the judicial district of the witness residence. If the case is heard in another judicial district, the evidence is therefore given before the witness local district court in the form of an alternative examination, and only exceptionally is a witness ordered to appear before the district court of another judicial district to give evidence. This special phrasing of the rule on the duty to give evidence, which is not found in the Danish Administration of Justice Act, has its natural background in the geographical conditions in Greenland. The Commission has considered whether the reason for maintaining the local delimitation of the duty to give evidence is still adequate or whether as it happened in Denmark in 1965 the delimitation can be abolished and replaced by a duty to appear before all the courts of the country. Following an overall assessment, it is proposed to maintain the current principle of the geographical delimitation of the duty to give evidence, but subject to a considerable relaxation of the conditions for ordering individuals to give evidence to a district court in judicial districts other than the district of the witness residence, and it is also proposed to introduce rules on the possibility of examining witnesses by means of remote communications, i.e., typically video conferencing equipment and the telephone Witnesses summoning and examination. Witnesses are summoned by the presiding judge, although the prosecutor can summon witnesses in criminal cases. Another rule is that witnesses in civil actions are normally examined by the presiding judge. This is in contrast to the procedure in Denmark, where witnesses are usually examined by the party requesting the witness. The Commission proposes that the presiding judge s active efforts should be reduced and that it should be up to the parties themselves to a far greater extent to decide on the production of evidence and thus on the witnesses to be summoned. Such a change is found not to cause concern in view of the fact that the presiding judge s duty of guidance of the parties is maintained. It is proposed to draft such rules with inspiration from the Danish Administration of Justice Act, according to which the court will still summon witnesses in a case, but without having to make quite the same substantial review of the relevance of the witnesses to the case as is assumed by the travaux preparatoires of the current rules of the Administration of Justice Act for Greenland.

38 36 Moreover, witnesses should be examined by the party requesting the witness and not by the presiding judge. The court may, however, ask supplementary questions of the witness. 9. Expert opinions The Administration of Justice Act for Greenland currently has no rules specifically governing the use of so-called expert opinions [syn og skøn] in the administration of justice. In the course of time, however, practice has evolved in this field, to a wide extent in accordance with the rules on expert opinions laid down in the Danish Administration of Justice Act. It is proposed to introduce rules on expert opinions inspired by the rules on expert opinions in the Danish Administration of Justice Act.

39 37 Chapter IX Civil proceedings 1. Introduction The majority of all civil proceedings are heard by the district courts of first instance with a district judge as the presiding judge. In its assessment of statutory rules and practice in this field, the Commission has particularly had an eye to procedural safeguards and reduction of the length of proceedings, and its deliberations should be seen in the light of the proposal that most cases, also in future, should come within the jurisdiction of the district courts, where the judge is a locally anchored person who is not a lawyer. The rules of procedure should still also be designed for litigants in person. 2. Rules of procedure Several procedural issues are not governed at all by the Administration of Justice Act for Greenland. To the widest extent possible, a new Administration of Justice Act for Greenland should provide answers to the parties and any process agents and judges on the questions of procedural law that may arise during proceedings. It will be unsatisfactory if the players in court still have to use principles from the Danish Administration of Justice Act as a supplement to any great extent. The Commission finds that the rules need elaboration and proposes basically to introduce the same rules as in Denmark Writ of summons. A civil action begins when a writ of summons is lodged with the presiding judge of the relevant court. To prevent initiation of actions that cannot be completed due to technical defects, it is proposed to introduce express formal requirements to the writ of summons in the Act Non-appearance. Under current law, the judge may proceed with an action even though the plaintiff fails to appear, unless the plaintiff ought to be examined or he or she ought to have an opportunity to amend the claim or it is found inadvisable for other reasons to determine the action on the basis available. These rules deviate from those of the Danish system, under which the action is dismissed if the plaintiff fails to appear. According to the travaux preparatoires of the Administration of Justice Act, the more lenient rules in Greenland are caused by the long geographical distances and difficult traffic conditions. The Commission agrees that these considerations should be accommodated, but finds it inappropriate to do so through the rules on non-appearance. Instead, the Commission finds that the regard for the parties actual possibility of appearing should be safeguarded through the court s planning of the proceedings so that nobody is summoned subject to sanctions for nonappearance if it obvious in advance that the party is prevented from reaching the relevant places for geographical reasons including reasons of time or money.

40 38 Accordingly, the current rules should be tightened so that they substantially correspond to the rules of the Danish Administration of Justice Act. Dismissal of the action is thus proposed if the plaintiff fails to appear for the hearing or fails to submit a written reply in the action before a time-limit fixed by the court. In case of the defendant s non-appearance or failure to produce a written defence in the action, judgment must be entered for the plaintiff, provided that it is found to be substantiated in the writ Court hearings. Under the current system, the basic rule for proceedings is that the parties are summoned to a trial before a united court, but actions are not always decided following trial. Most parties in civil actions before the district courts are litigants in person. Concerning the possibility of being assisted by a process agent, please see chapter VII, section 1, of the Report. By contrast, the parties in actions before the High Court of Greenland are predominantly represented by an attorney. Such representation characterises proceedings before the High Court, which proceed as under the Danish system of administration of justice. The Commission has considered the future system in the light of the proposal that also in future most actions will come under the jurisdiction of the district courts, where the judge is a locally anchored person who is not a lawyer. In the Commission s view the present district court practice on certain points reflects a lack of overview and inadequate control of the procedure. This could be improved by permanent employment and strengthening of the professional standard of the district judges. According to the Commission proposal, the administration of justice system should be adapted, also in future, to the fact that most parties are litigants in person. The procedure therefore has to be planned so as to facilitate ordinary citizens possibilities of safeguarding their interests themselves. Among other things, the parties must be offered the requisite guidance and assistance. The principle of immediacy must be applied to the widest extent possible, also in civil actions. It should thus be attempted to determine the actions following a trial where both parties are present and all the evidence is produced. It is proposed to introduce the possibility of using telephones, video conferencing equipment and other technical equipment in the administration of justice. To prevent trial of disputes that could have been settled amicably, the court must have a duty to arrange a settlement between the parties unless this is considered in advance to be impracticable or in vain. 3. Debt collection proceedings Neither the current Greenlandic nor the current Danish Administration of Justice Act has rules on special debt collection proceedings. In the vast majority of civil actions before the district

41 39 courts, the defendant does not contest the plaintiff s claim, and the Commission therefore proposes the introduction of simple, cheap and practical proceedings for such actions. When drafting the proposal, the Commission based itself on the main principles for debt collection proceedings in Denmark proposed in a report submitted by the Danish Small Cases Committee [Småsagsudvalget], but not implemented in Demark. Debt collection proceedings should be initiated by submission of a writ of summons in which the creditor must state that the case should be heard according to the rules on debt collection proceedings. The defendant/debtor may prevent the case from being heard under the rules on debt collection proceedings by objecting to the plaintiff s claim(s). If no timely objection is made, a default judgment will be passed, and enforcement proceedings will be carried out directly. In this way, two sets of proceedings are merged into one while it has been clarified before the hearing by the enforcement court whether the defendant owes the plaintiff the amount claimed. 4. Legal costs court fees Under the current system it is generally cost-free or connected with only limited costs to citizens to be a party to civil proceedings. The reasons are particularly that no court fee or any other form of user payment is demanded by the courts in Greenland, that the mode of proceedings does not require professional legal assistance, that it is possible to obtain financial relief from the state in the form of assignment of counsel and exemption from court fees, that the state defrays all expenses for witnesses, and that there is no requirement to realise any costs of travel, board and lodging as the parties and their process agents are not ordered to appear away from their places of residence. The Commission finds it of great importance that the citizens have a real access to the court and are not prevented from court proceedings by costs. In the light of this the Commission has assessed the question of introducing court fees. The proposed modernisation of the judicial system entails increased current expenditure and, on the face of it, it seems most proper that particularly resource-strong users of the judicial system (major businesses, public authorities, etc.) help cover such expenditure. Moreover, a system with payment of court fees may contribute to preventing the Greenlandic courts from being overloaded with cases whose subject-matter is of low value, and also to some extent protect it against unreasonable lawsuits and inflation of the subject-matter. Arguments against the introduction of court fees are particularly the restriction of especially impecunious citizens in their use of the courts and the potential risk that the court fee will prevent such citizens from having otherwise well-founded claims determined by the courts. This risk can be countered by designing the scheme so that impecunious citizens are exempted from paying court fees by means of the proposed rules on court fee exemption. Against that background the Commission finds it reasonable to introduce court fees in civil

42 40 proceedings and certain enforcement proceedings (not more than one per cent of the value of the subject-matter and a minimum fee not exceeding DKK 500). Administration of court fees can be handled by the Court of Greenland. 5. Exemption from court fees There are no rules on exemption from court fees, but the High Court judge of Greenland may grant exemption according to practice. The Commission proposes that rules on the right to exemption from court fees should be prescribed in the Administration of Justice Act and be drafted with due regard to the simultaneous proposal of introducing court fees, including at the district courts. It is proposed to transfer the power to grant exemption from court fees to the High Commissioner.

43 Chapter X Criminal proceedings 1. Introduction 41 A large number of the current rules on criminal proceedings are unchanged in relation to the 1951 Administration of Justice Act for Greenland. An in-depth review of this area was therefore required. As an example, several procedural issues are not governed by the current Administration of Justice Act. In practice, principles from the Danish Administration of Justice Act have provided inspiration in these fields. The Commission finds the existing scheme unsatisfactory and proposes that a new Administration of Justice Act for Greenland should provide defence counsel, prosecutors and the judges with answers to the questions of procedural law that may arise during the proceedings. 2. Prosecution One of the most important procedural safeguards within the administration of criminal justice is the so-called principle of objectivity, which implies that police and prosecutors are subject to a duty to carry out investigation and prosecution in an objective manner. One important element of the principle of objectivity is that no criminal proceedings may be instituted in a case unless the prosecutor deems conviction likely. The Administration of Justice Act has a provision on prosecution in criminal proceedings. It appears from this that the opposite of instituting criminal proceedings is to decide to dismiss [henlægge] the case. This concept applies to two widely different groups of cases: 1) cases that the police deem unlikely to result in conviction by the court; and 2) cases that are deemed by the police to provide a basis for conviction, but where there may be other reasons not to institute criminal proceedings. The Commission proposes that this fundamental conceptual distinction should be expressed in the wording of the rules on prosecution. It is proposed to introduce the concept of withdrawal of charges [påtaleopgivelse] in the types of cases where the initial charge has proved unfounded or where further prosecution cannot otherwise be expected to lead to conviction of the suspect. Moreover, charges can be withdrawn in cases where completion of the trial will entail difficulties, costs or trial periods which are not commensurate with the importance of the case and with the sanction to be expected in case of conviction. It is proposed to provide authority for discharge [tiltalefrafald] in cases where it is deemed, on the basis of the investigation carried out, that the trial may lead to conviction if the case is taken to court, but where other circumstances suggest that no criminal proceedings

44 42 should be instituted. This will be the case where it is found reasonable to refrain from instituting proceedings due to the insignificance of the offence. Moreover, it must be possible to grant discharge in cases where the suspect was under 18 years of age at the time of the offence. However, it will be a requirement that the discharge is not disproportionate to the offence and the circumstances of the case in general. In addition, it is proposed to introduce uniform rules on notification of decisions concerning both withdrawal of charges and discharge. According to the proposal, such notification must be given to the suspect and others having a reasonable interest therein, including any victims, cf. chapter XII, section 4. Finally, it is proposed to introduce a right to a judicial review of discharges. 3. The defence in criminal proceedings Under the current rules, any legally competent person with an unblemished reputation is entitled to appear as lay counsel in criminal proceedings. As mentioned above, the Commission finds that special requirements must be satisfied in future to obtain the right to appear as defence counsel. The right to appear is reserved for the following persons: (1) legally competent persons of unblemished reputation residing in Greenland who have been granted authorisation as defence counsel on the basis of a special training programme as defence counsel including lawyers who are not attorneys; (2) attorneys with offices in the realm (Greenland, Denmark and the Faeroe Islands). The deliberations of the Commission and its proposals on the defence counsel training, the authorisation scheme and other initiatives to strengthen the defence are described above in chapter VII, which also deals with the question of the role of defence counsel According to the current rules, the defendant has a right to lay counsel upon request. It is proposed to introduce a minimum limit based on the gravity of the case as to eligibility for assignment of defence counsel. The right to have defence counsel assigned will thus depend on whether the assistance of defence counsel must be deemed necessary in view of the nature of the case, the defendant s person and the circumstances in general To mitigate the consequences of the special geographical and traffic conditions, it is further proposed to introduce a possibility of assigning a local defence assistant [stedlig medhjælper]. If the functions of the defence are to be exercised outside the defence counsel s permanent place of residence, it must thus be possible to assign a local person entitled to appear as defence counsel to represent the defence The proper performance of the tasks of the defence must be safeguarded through the rights of the defence counsel. To that end, it is proposed to extend the rules already applicable, making them more detailed than is the case today. As a very essential extension in relation to current law it is also proposed that the rights of defence counsel are to apply as from

45 43 the time when a charge is first preferred in a case. Today defence counsel has no rights in a case until criminal proceedings have been instituted, unless detention of the suspect is requested. 4. Victim s procedural position It is proposed to strengthen the victim s procedural position in criminal cases. With few exceptions, the Administration of Justice Act contains no rules specifically aimed at the victim in criminal cases. The Commission finds this state of law unsatisfactory and has included the arrangements applicable in Denmark in its deliberations. According to the proposal, it is incumbent on the police to pursue the victim s claim for compensation for injuries inflicted if the victim so requests. In addition, the court may adjudicate the question of compensation even though no liability under criminal law is imposed on the defendant. The right to refer the hearing of the civil claim to civil proceedings must be maintained in the Commission s view, but it is proposed to limit such right to cases where the claim for compensation concerns damage to property or is of a complex nature, for example due to the calculation of compensation. Moreover, it is proposed to introduce the same right as in Denmark for the victim in certain criminal proceedings to have a victim advocate assigned to provide support and guidance as well as help of a more general and practical nature. 5. General comments on investigation and coercive measures The discussions on the drafting of new provisions in this field were based on the current Greenlandic and Danish rules Coercive criminal justice measures is the designation of some of the measures applied by the police during investigation. By these measures, the police gain access to the private spheres of suspects or others to procure or secure information in a case or to advance prosecution and to combat crime in other ways. Therefore there are strong and often opposite regards to be considered in this field. The measures include arrest and detention, interference with the secrecy of communications, bodily interference, seizure, searches, taking and storing of fingerprints, photos and other material. The Standing Committee on Administration of Criminal Justice of the Ministry of Justice [Justitsministeriets Strafferetsplejeudvalg] has reviewed these coercive measures in a number of reports, on which the provisions of the Danish Administration of Justice Act are based. The Commission finds that the Danish rules will also basically be suitable for Greenland.

46 44 According to the Standing Committee, the Administration of Justice Act should provide an exhaustive catalogue of all coercive criminal justice measures, and the predominant rule should prohibit application of such measures unless their application is expressly permitted. The Commission endorses this view Requirement of crime. As a condition for a coercive criminal justice measure, a number of provisions of the Danish Administration of Justice Act have a requirement of crime, that is, a requirement that an offence of some gravity is involved, for example an offence carrying a maximum penalty of 18 months or more. Other provisions require a maximum penalty of six years or more. The principle is that the gravity of the measure should match the gravity of the offence. Both the current Penal Code and the Penal Bill proposed by the Commission differ from the Danish Criminal Code in that the individual offences are not associated with any particular type of penalty (such as a fine or prison), or minimum or maximum penalties. The penal law of Greenland is mainly based on a system of sanctions. The Commission proposes that the guidelines for requirements of crime applied in current practice be maintained. The following is not intended to imply any change, but is simply a clarification of current practice. Where the provisions of the Danish Administration of Justice Act prescribe a maximum penalty of 18 months or more, it is proposed that the corresponding provisions of the Administration of Justice Act for Greenland should require an aggravated offence. An aggravated offence means an offence for which the sanction in practice would be expected to be more severe than a fine in the sanction ladder model. Where the provisions of the Danish Administration of Justice Act require a maximum penalty of six years or more, it is proposed that the corresponding provisions of the Administration of Justice Act for Greenland should require an offence of such particular gravity that the relevant coercive measure is necessary, or a particularly aggravated offence. No difference between these two wordings of the criterion is intended. As a main rule, a particularly aggravated offence and an offence of such particular gravity that the measure in question is necessary are to mean offences for which a prison sentence of a not inconsiderable length must be expected in practice For any kind of coercive measure of criminal justice, a principle of proportionality is assumed to apply, that is, the harm and the disturbances caused by the measure to those affected by it must not be disproportionate to the gravity of the case and the necessity of the measure. It is proposed to lay down express provisions of proportionality for the individual measures to ensure that the court takes this consideration into account Beside the principle of proportionality, a general principle of consideration applies, according to which any coercive measure should be implemented in the most considerate way

47 45 possible to the person or persons affected by the measure. It is proposed to enter this principle expressly in the law as concerns arrest and detention and all other coercive criminal justice measures where a requirement of consideration makes sense. 6. The individual measures 6.1. It is proposed to maintain and expand the few current rules on investigation and questioning to make them correspond to the rules of the Danish Administration of Justice Act The general rules on arrest and detention largely correspond to the Danish rules and are proposed to be continued substantially as they are. However, it is proposed to introduce a right for the court to uphold an arrest for up to three times 24 hours if the detainee cannot be released immediately, and the court cannot decide on the question of detention promptly due to the inadequacy of the information available or for any other reason. The Commission proposes that the main principles governing the detainees situation in the detention rooms or the prison should be governed by the Administration of Justice Act in the same way as in Denmark. In addition, the court should be authorised to decide on alternative placement of a detainee (alternative detention) The current Administration of Justice Act has no provision on solitary confinement of detainees. The Commission proposes introduction of the Danish procedural safeguards for detainees in solitary confinement in Greenland. Solitary confinement of detainees in view of the investigation will only be possible in future by prior decision of the court, and the conditions for solitary confinement and its duration must be fixed by law Under the current rules on interference with the secrecy of communications the district judge may decide at the request of the police that letters, telegrams and other consignments to or from a suspect must be surrendered to the court. Moreover, at the request of the police the district judge may permit the police to tap telephone conversations, order Tele Greenland to give the police information on transmission data and allow the police other interception than telephone tapping. It is proposed to tighten the conditions for interference with the secrecy of communications. As for telephone tapping and data interception it is proposed to change the requirement of crime from the current list of offences to a requirement that the investigation concerns a particularly aggravated offence, invasion of privacy or child pornography. As concerns other tapping that telephone tapping, such as room tapping, it is proposed that the investigation should concern a particularly aggravated offence that has endangered or may endanger the life, health or welfare of others or essential societal assets As opposed to the Danish Administration of Justice Act, the current Administration of Justice Act has no separate provisions on bodily interference, and so far the rules on searches

48 46 have been used. In practice, the police have had an eye to the Danish rules, so the proposal to introduce rules on bodily interference corresponding to the rules of the Danish Administration of Justice Act involves no major change of substance Under the current rules, a search of premises without the consent of the person whose premises are to be searched usually requires authorisation from the district judge. The Commission finds the current rules too lenient and proposes a tightening of the conditions for searches and the rules of procedure so as to correspond to the Danish rules. One implication of this is that a search of the homes, other premises and locked objects of suspects can only be performed if there are reasonable grounds for suspecting the person of an offence that may result in imprisonment according to law, or there are specific reasons for assuming that a search will bring to light evidence for a case or seizable objects The current rules allow seizure of objects if they are assumed to be of importance as evidence, if they should be forfeited, or if a person has been deprived of them by an offence and may claim them back. It is proposed to tighten the rules on seizure to align them with the corresponding Danish rules. Accordingly, seizure should be possible in three kinds of situations: 1. To secure evidence, or a public authority claim for confiscation of proceeds or forfeiture of objects, or a victim s claim for return of objects. 2. To secure a public authority claim for confiscation of values or a fine or a victim s claim for compensation, etc. 3. When the defendant has evaded further prosecution in the case Discovery is not mentioned in the current Administration of Justice Act. Discovery means surrender or presentation to the court of documents and other things of importance to the conduct of criminal proceedings. In practice, the police have had an eye to the Danish rules, so the proposal to introduce discovery rules corresponding to the rules of the Danish Administration of Justice Act involves no major change of substance Showing photos to persons other than the police will often be an essential part of police investigation. When, in connection with the description of a suspect, a person believes that he or she can recognise the suspect on a photo, the police may show photos of persons to the witness to determine the identity of the offender. To have one s photo shown to outsiders in connection with the investigation of an offence is a major coercive measure. It is therefore proposed that the person involved must previously have been convicted of an offence of a certain qualified nature that may generally justify subsequent use of his or her photo for showing in connection with a criminal investigation. If the person has only been found guilty of an offence that cannot be characterised as an aggravated

49 47 offence, it should not be possible to show the photo to persons outside the police unless there are specific grounds for suspicion against the person involved The current provisions on pre-sentence reports have proved satisfactory in practice. However, if the suspect has to undergo a mental examination, it often takes a long time. The Commission finds that provisions on time-limits and procedural rules etc., corresponding to those applicable to detention should be introduced. 7. Institution of criminal proceedings Institution of criminal proceedings comprises the period from the prosecutor files the indictment until the trial commences The indictment has a very central function in criminal justice and is intended particularly to define and describe the limits of the charge preferred. Inspired by the Danish Administration of Justice Act, the Commission proposes enactment of a rule prescribing that the indictment must state the rule allegedly violated and the designation of the offence, if such designation is generally recognised. Moreover, the indictment must give a brief description of the circumstances of the charge, the authority under which a sanction may be imposed, and information on circumstances that the prosecutor intends to invoke during the proceedings for determination of the sanction It does not appear from current law that the defendant is entitled to a certain period between service of the indictment and the beginning of the trial for preparing his or her defence. The Commission finds as a matter of principle that this arrangement is connected with absolutely vital concerns of due process, and in that light it is proposed to fix a period of one week as the shortest period between service of the indictment and the summons for the trial and the actual trial. The court may deviate from this time-limit in urgent cases, if found compatible with the regard for the defendant The question of the prosecutor s right to extend the charge preferred and make corrections to statements in the indictment is not governed by legislation. Therefore it is proposed to introduce such provisions corresponding to the rules of the Danish Administration of Justice Act. Accordingly, extension of the charge and correction of the indictment before the trial can only be effected by the filing and service of a new or an additional indictment. Extension of the charge during the trial to include other counts than those listed in the indictment will only be possible according to the proposal if the court and the defendant give their consent or if the new criminal act was committed during the trial. If the defendant does not consent to extension of the charge, new proceedings against the defendant concerning the new counts must be instituted.

50 Chapter V of the Report discusses a number of central issues concerning the language and the special fact that the Greenlandic society is bilingual. To the Commission it is fundamental that efforts must aim, to the widest extent possible, at Greenlandic as the language used in the judiciary where necessary, and where this cannot immediately be achieved then to try to ensure the most efficient and adequate translation possible. In this light, the Commission finds it natural to introduce a provision into the Administration of Justice Act stipulating that indictments and lists of evidence must be prepared in or translated into a language understood by the defendant. 8. Criminal proceedings in court The Commission proposes more detailed rules of procedure for criminal proceedings in court Corresponding to the provision of the Danish Administration of Justice Act, it is proposed to introduce the possibility of pre-trial reviews in criminal proceedings It is proposed to maintain the provision stipulating that the defendant has a duty to appear in person before the court upon lawful summoning, and to supplement it with provisions prescribing a duty for the defendant as well as the prosecutor and the defence counsel to be present in person in court until the case has been set down for judgment Even though the defendant fails to appear current law allows the court to have evidence produced that cannot conveniently be postponed. Based on the rules of the Danish Administration of Justice Act, it is proposed that the court should adjourn the case if the defendant fails to appear at the beginning of or during the trial and cannot promptly be produced. As an exception, however, it will be possible to examine witnesses or experts if the defendant fails to appear despite lawful summons, and the defendant has given no lawful cause of absence. It is a condition for this right that the examination is found compatible with the regard for the defendant and that adjournment of the proceedings will be of major inconvenience to those present or result in major adjournment of the proceedings, for example if one or more of the witnesses have travelled to the courthouse. It is additionally a condition that the defence counsel has appeared if the defendant has retained counsel. As now, in a number of specified cases the court may decide to proceed with the trial until judgment in the defendant s absence Production of evidence. As far as possible, all the evidence should be produced during the trial at which, as the absolute main rule, the defendant is present. Deviations from the principle of immediacy will only be allowed if the case comprises one or more pieces of evidence that cannot be produced at the place of the trial without difficulty.

51 49 It is proposed to make a statutory rule prescribing that the evidence must be produced during the trial and that the court, when determining whether something can be considered a proved fact or not, may only take into account the evidence produced during the trial. Accordingly, the principle of immediacy can only be deviated from if there is particular authority to do so. The Commission has also considered the conditions for organising video conferences and telephone conferences in criminal proceedings. The general deliberations on this point have been described in detail in the Report (cf. chapter VIII, section 4). It should be noted that the defendant s personal presence in court is normally more important in criminal proceedings than in civil proceedings. Participation via a video link cannot equal personal presence in court, and therefore participation via remote communications in criminal proceedings cannot be expected to be applied as much as in civil proceedings. According to the proposal, a defendant will never be allowed to participate in a court hearing by telephone. It is essential for the court to see the defendant, and it is also essential for the defendant to see the players in court. By contrast, video conferences may be a good and realistic alternative to personal appearance in several cases. The court must be authorised to decide that the defendant may participate in a court hearing via remote video communications if the defendant s presence in court is not necessary. The Commission proposes that the right to use documents as evidence be governed by legislation based on the Danish provisions. 9. Judgment The current rules have no specific time-limits for passing judgment. Inspired by the Danish Administration of Justice Act the Commission proposes to prescribe that the court must make its decision as soon as possible after the trial ends and that, when setting down the case for judgment, the court must say when judgment will be passed. A further proposal is that the judgment must be passed within two weeks from the time of setting down the case for judgment if judgment is not passed on the same day. Regard for the defendant s legal position points towards stricter rules for the court s right to deviate from the charge. The Commission thus proposes to prescribe by law that the court may refer the count prosecuted to another provision than the one claimed by the prosecutor, and that the court may deviate from the charge as concerns the secondary circumstances connected with the offence. However, one condition for doing so is that the court deems with certainty that the defendant has had adequate access to defend himself or herself, also in view of such deviation from the charge. It is proposed to maintain the current requirements made of the ratio decidendi of a conviction, but supplemented by a rule to the effect that, in the judgment, the court shall also men-

52 50 tion the facts to which it attached importance in its choice of sanction. One reason for this proposal is a desire to increase the persuasive value of judgments and to increase the knowledge of case-law in different fields, including to visualise the level of sanctions in criminal cases. The requirements for acquittals are tightened so that the ratio decidendi of the judgment must mention the facts which are a condition for conviction and which are deemed to be lacking or not proved. In addition, the statutory provisions applied must be mentioned. An express provision must be inserted in the Administration of Justice Act, prescribing that the judgment must be drafted in or translated into a language understood by the defendant.

53 51 Chapter XI Appeal and reopening. Enforcement (proceedings) 1. Appeal and reopening 1.1. Introduction The following is a review and assessment of the Administration of Justice Act rules on appeal and reopening of civil and criminal cases. Please note the Commission s proposal for a new administration of justice system according to which the district courts and the Court of Greenland will jointly handle the judiciary functions at first instance, while the High Court of Greenland will handle appeals only, and the Supreme Court in Denmark will remain the third instance. The High Court of Eastern Denmark will thus no longer be an appeal instance in the administration of justice system of Greenland (cf. chapter VI, section 5, of the Report) Appeal of judgments from courts of first instance Time-limit for appealing. It is proposed to maintain the current time-limits for appealing judgments from the district courts or the Court of Greenland to the High Court of Greenland, the time-limit being four weeks in civil proceedings and two weeks in criminal proceedings. This corresponds to the Danish time-limits for appeals from the district court to the High Court Non-appearance before the appeal instance. The parties non-appearance in a civil action does not currently prevent trial of the action or its continued hearing by the High Court, and the action can be reopened if it was heard despite the party s non-appearance. It is proposed to tighten the rules on non-appearance in civil actions so that they correspond substantially to the rules of the Danish Administration of Justice Act. The regard for the parties actual possibility of attending must be safeguarded by the High Court s planning of the proceedings so that a summons to a party does not carry a sanction for non-appearance if it is obvious in advance that the party is prevented from appearing at the place in question. It is also proposed to introduce a provision stipulating that the respondent is considered to have claimed dismissal of the appeal if, after being served with the notice of appeal, the respondent fails to appear or submit a defence in due time. In criminal proceedings, the Commission proposes to introduce a distinction between appeals involving the evidence for conviction of the defendant and appeals not involving conviction. If the appeal is not against conviction, it must be possible to proceed with the case even though the defendant fails to appear. At appeals against conviction where only the defendant has appealed, it is proposed that the High Court can dismiss the appeal if the defendant fails to appear and the court finds it unjustifiable to proceed with the case in the defendant s absence.

54 It is proposed to introduce detailed rules on reopening of cases, widely inspired by the Danish Administration of Justice Act The Commission has also assessed whether, as so far, there should be an unrestricted right of appeal of all judgments from the first to the second instance, or whether to introduce an appeal restriction for judgments in minor cases. Such a system applies in Denmark, where leave from the Board of Appeal is required for appeal of civil actions with a disputed amount not exceeding DKK 10,000 and criminal cases with fines not exceeding DKK 3,000. However, the Commission found no basis for suggesting a similar system in Greenland where the vast majority of such cases will be decided by the district courts, whose judgments should always be reviewable by a court presided over by law professionals in the Commission s opinion. In view of the nature of the cases intended to come within or to be referred to the Court of Greenland according to the proposal, the Commission finds it impossible to restrict the right of appeal of cases heard by the Court of Greenland at first instance. It is therefore proposed to maintain the principle of an unrestricted right to appeal from the first to the second instance so that judgments passed by a district court or the Court of Greenland can always be appealed to the High Court of Greenland Appeal to the Supreme Court Under the current rules for appeal to the Supreme Court, appeal judgments in civil cases pronounced by the High Court of Greenland or the High Court of Eastern Denmark cannot freely be appealed to the Supreme Court, but the Board of Appeal may grant leave to appeal cases involving a question of principle. Similar rules apply to judgments in criminal cases, but so that the Board of Appeal may grant leave to appeal to the Supreme Court if the case involves a question of principle or particular circumstances otherwise make it appropriate. These criteria correspond to the Danish rules. The Commission finds that special leave must still be required for appeal of a judgment from the second to the third instance. According to the proposal, leave to appeal must be granted by the Board of Appeal in Denmark according to the criteria currently applicable Interlocutory appeal Under the current system, as a main rule, no interlocutory appeal of the decisions made by the court during the proceedings is possible. Such decisions may be a ruling on hearing in camera, detention or other coercive measures, and decisions on the production of witnesses or procuring of an expert s opinion. It is proposed to introduce a right to interlocutory appeal as in Denmark so that in principle there is a free right to interlocutory appeal from the district courts and the Court of Greenland to the High Court of Greenland unless otherwise specifically provided for by law, whereas interlocutory appeal from the High Court of Greenland to the Supreme Court is only possible by leave of the Board of Appeal.

55 Exceeding time-limits It is proposed to adapt the future system of appeals and interlocutory appeals in Greenland after expiry of the time-limit for appeal in accordance with the Danish, slightly more restrictive system Cross appeals Under the current system, the respondent in both civil and criminal proceedings is entitled to maintain his or her claim before the appeal instance even though the district court did not wholly find for the respondent in its judgment, and even though the case has only been appealed by the other party. Thus, neither in civil nor in criminal proceedings is any cross appeal required for a respondent to maintain a claim made before, but not accepted by the lower instance. As mentioned above, the Commission proposes for civil actions that the respondent should be considered as having claimed dismissal of the appeal if, after being served with the notice of appeal, the respondent fails to appear or to submit a timely defence in the action making a counterclaim. For criminal proceedings it is proposed to introduce a system of cross appeal similar to the Danish system so that the other party has to appeal the judgment as well if he or she wants to claim variation of the judgment appealed against. The reason for this proposal is that the Commission finds that the same principle of prohibition of reformatio in pejus should apply (that is, a change to the worse) as under the Danish Administration of Justice Act. This principle means that the appeal court is prevented from imposing a more severe sanction than the first instance if solely the defendant has appealed the case. Thus, the prosecutor must file a timely appeal claiming a more severe sentence to enable the High Court to pronounce a judgment imposing a more severe sanction than the sanction imposed by the judgment appealed against. It is proposed to fix the time-limit for a cross-appeal at two weeks like the ordinary time-limit for appeal in criminal proceedings, to be reckoned from the day when the party in question was notified of the other party s appeal. This corresponds to the Danish rules Scope of the High Court review As in Denmark, the right of review of the appeal court in civil proceedings will be delimited by the claims, allegations and evidence which the parties have chosen to produce to the High Court. The Commission finds that a delimitation of the scope of the appeal proceedings is required in criminal proceedings. This has been done by virtue of the proposal above on introduction of a

56 54 system of cross appeal which will also be connected with a prohibition of reformatio in pejus Principle of immediacy The principle of immediacy should also apply to the second instance so that in principle cases should be determined following a trial at which all the evidence is produced immediately to the adjudicating court, cf. above (and chapter VIII, section 4, of the Report). 2. Enforcement proceedings (enforcement law) 2.1. Introduction Before the Administration of Justice Act for Greenland entered into force in 1951, there was no general rule on the recovery of claims. The 1951 Administration of Justice Act provided that the police and the local bailiff have to grant assistance, upon request, for recovery of claims on the basis of the legal documents referred to in the same provision. It was not found feasible to order the district judge to assist directly in the enforcement. It became the police who handled the task as recovery authority. However, if one of the parties or a third party objected, the matter had to be brought before the district court. Financial activities in the country increased in all fields, and private businesses developed as well as a private loan market. The increasing number of cases made it difficult for the police to cope with the enforcement task, and the scanty statutory rules did not provide sufficient guidance on the many diverse problems. In 1992 it was decided to divide the enforcement activities between the police and the local bailiffs Authority The Commission has found no reason to propose changes to the functions of the local bailiffs. As proposed by the Commission, however, enforcement proceedings concerning recovery of civil pecuniary claims should be transferred from the police to the district courts as they are not related to normal police tasks. By its nature, civil enforcement is a judicial function naturally belonging under the courts. The district courts will thus be entrusted with both establishing a claim by judgment and subsequently enforcing the judgment. This will also make it possible to introduce a collection process in Greenland uniting the two tasks, cf. above (and chapter IX, section 3, of the Report). At enforcement of non-pecuniary claims, particularly possession and repossession proceedings concerning leaseholds and the like, the police will often have to be present anyway to ensure any physical exercise of force that may be necessary in the circumstances. Police handling of these tasks has not given rise to any criticism by the general public, and the Commis-

57 55 sion also finds that continued handling of these tasks by the police cannot give rise to any concern. Enforcement of fines and claims of confiscation and forfeiture are naturally connected with ordinary police tasks, and practical considerations therefore make it highly appropriate that the police should continue to recover such claims as the enforcement authority. This system has not given rise to any concern either. The Commission finds that attachment and prohibitory injunctions, securing of evidence (at infringement of intellectual property rights, etc.), and possession of mortgaged property and forced sales (of real property, registered vessels, registered aircraft, fishing rights and securities) are of such legal nature that the enforcement authority in these cases should be conferred on the Court of Greenland. The Commission proposes, however, to transfer forced sales of chattels from the police to the district courts. This proposal should be seen in connection with the proposal to transfer recovery of civil pecuniary claims from the police to the district courts as well. The district courts have thus effected the execution that will now form the basis of the forced sale. The district courts are also found suited to take over this task, which is best managed locally Bases of enforcement The various bases of enforcement appear from the Administration of Justice Act. It is proposed to keep these rules with a few updates Objections during the enforcement proceedings Under current law, the police or the bailiff has to bring the case before the district court if a party or a third party objects to the enforcement, unless the objection can be immediately dismissed. It is proposed to keep this provision concerning enforcement by the police and the bailiff, but with the amendment that the case must be brought before the district court even though the bailiff in question finds that an objection can be immediately dismissed, as it must be considered most correct that this assessment is always made by the district court. It is also proposed in general to make more detailed rules on the question of hearing of objections during enforcement proceedings Attachment Attachment is a provisional enforcement law remedy ensuring that assets cannot be withheld from serving to satisfy a creditor merely because the creditor at the time in question has no possibility of levying execution for his or her claim because the creditor has no execution basis yet for the claim. Greenland has no express rules on this matter.

58 56 The Commission finds that the Danish rules on attachment work satisfactorily, and since there are no differences between the situation in Greenland and in Denmark in this field, it is proposed to transfer the Danish provisions to the Administration of Justice Act for Greenland Injunctions An injunction is a provisional remedy of enforcement law whereby the bailiff can order a party to refrain from acts contrary to the applicant s rights. It is not possible today to issue an injunction in Greenland. As in other modern societies, business and industry in Greenland spend considerable funds on product development, marketing, etc., and therefore need to be able to prevent competitors from marketing infringing products. The Commission finds that the Danish rules on injunctions work satisfactorily, and since there are no differences between the situation in Greenland and in Denmark in this field, it is proposed to transfer the Danish provisions to the Administration of Justice Act for Greenland Possession of mortgaged property Possession of mortgaged property means that a mortgagee of real property, rather than seeking satisfaction by execution with a subsequent forced sale, seeks satisfaction in the utility value of the mortgaged property. Normally, the transfer is effected by the aid of the bailiff, who assists the mortgagee in taking possession of the property so that the mortgagee s claim can be covered from the operating proceeds. It is proposed to introduce such rules in Greenland Forced sales of real property and chattels As concerns the issue of forced sales of real property and chattels, it is necessary to provide a fixed and unambiguous framework so that the law provides answers to all generally occurring questions that may arise during the accomplishment of a forced sale. The Commission finds that the Court of Greenland should be in charge of forced sales of real property, registered vessels, aircraft and securities and that the district courts should be in charge of forced sales of other chattels.

59 57 CRIME, PRISONS AND PROBATION (Chapters XII to XVII of the Report) Chapter XII Crime The Commission studies of crime and its victims were carried out by the Commission member Finn Breinholt Larsen, social scientist. Mr Larsen s study Crime in Greenland extent, causes and potential action has been published by the Commission as a research report. The study was completed at the end of 1999 and therefore does not include subsequent developments. 1. Recorded crime - extent and trends 1.1. Description in figures. The development in all recorded crime from 1952 to 1999 is described both in absolute figures and in relation to population size, which has more than doubled during this period. To eliminate random fluctuations from year to year, four-year averages have been used. In absolute figures the number of reported offences rose from an average of 1,100 a year in to about 6,500 a year in , corresponding to a sextupling over less than 50 years. Crime peaked in the period , averaging 8,100 recorded offences a year, with 8,500 being the highest number of recorded offences in The relative growth in the number of offences in relation to the size of the population is less than half the absolute number. The average number of offences per 10,000 inhabitants rose from just under 500 in the period to an average of 1,100-1,200 in , corresponding to an increase of 2.4 times over 50 years. During the first ten years of this period, the relative number of offences doubled to about 1,000 per year in Part of the steep rise during this first part of the period can be explained by the establishment of the district courts in 1950, the introduction of a professional police force in 1952 and the geographical expansion of the police and increase in police staff in the following years. Then the relative number of offences was fairly constant until the early 1980s, when the number started rising again, until it peaked in with 1,500 recorded offences per 10,000 inhabitants per year Assessments. Directly, these figures can be interpreted to reflect a very steep rise in crime in Greenland from the early 1950s until the mid-1980s, only interrupted by a period of stagnation in the 1970s. The interpretation of the crime statistics of Greenland presents the same difficulties as in other countries. The crime recorded by the police is only part of the crime actually committed in society. Changes in the number of recorded offences may thus be caused by changes both in actual crime, the inclination of the population to report crime and the recording practices and

60 58 activities of the police in relation to certain forms of crime. Private insurance policies, upgrading of the police, rationalisation of police actions against drunken driving and drug offences, and public debates and attention on sexual abuse of children are all examples of factors that may affect the crime figures recorded independently of the development in the actual crime. With these reservations in mind, the image that emerges shows a society which has experienced a multiplication of reported crime over just four decades. However, this rising trend in recorded crime both in absolute figures and in relation to the number of inhabitants has stopped since the end of the 1980s and has been replaced by a downward trend. The decline is in the order of about 25 per cent compared with the mid-1980s. The total volume of recorded crime now corresponds to the level at the end of the 1970s and early 1980s. In relation to the size of the population, the total number of offences in Greenland in the period was only three-fourths of the total number of offences in Denmark (Denmark = index 100). Certain types of offences deviate from the general pattern, both in terms of trend and relative frequency (cf. in detail chapter XII, section 1, of the Report). They are sexual offences, offences of violence and drug offences, which occur in Greenland as hashish offences only. However, these three types of crime only take up little space in the aggregate crime statistics altogether about one-fifth in relation to the other types of crime. 2. Causes of crime empirical correlations The Commission has pointed out some features of the development in Greenland which have proved to be related to crime in other societies, and it is therefore reasonable to assume that this is the case also in the Greenlandic society Of societal changes generally assumed to affect the development in crime in a society, the following may be relevant in Greenland: Age and crime. The baby boom in the 1950s and 1960s resulted in strong growth of the age groups that usually commit most crime. The number of young people again began declining in the second half of the 1980s. The development in crime is assumed to be influenced by the development in the age distribution of the population. Urbanisation. The transition from a society of settlements to an urban society picked up speed seriously in the 1950s, and the more anonymous urban environments are assumed to lead to more crime. Danish immigration. The large immigration of Danish labour after World War II resulted in an increasing surplus of men. Men normally commit more crime than women, and singles commit more crime that married people. Abuse and crime. The alcohol consumption has fluctuated greatly over the last 50 years, but has generally been high. The consumption has been much reduced since There

61 59 is a close correlation between the alcohol consumption and the development in recorded violence in Greenland. Changes in the structure of trade and industry. Modernisation of the Greenlandic trade and industry increased the material wealth in society and multiplied the possibilities of theft and other property offences. Derived effects include in particular the unequal distribution of incomes and educational levels Some of the specific factors in the social surroundings that are assumed to affect crime in Greenland are: Family. Several of the above societal changes following in the wake of modernisation have affected the conditions under which families bring up their children. For some children and young people, this resulted in conditions during their adolescence that increased the risk of their sliding into crime. Drinking habits, frequent changes of partners and family conflicts are also presumed to be essential causes of the frequent violence and sexual assaults in homes in Greenland. School. Pupils doing poorly at school and pupils dropping out of school have an increased risk of getting involved in crime. The expansion and modernisation ( Danification ) of the elementary and lower secondary school of Greenland after 1950 meant that many pupils with poor proficiency in Danish had many problems during their school years and that contacts between teachers and pupils and between schools and homes were weak. Local community. Since the 1960s, Greenland has seen many of those factors in people s social surroundings that are known by experience to affect crime. This applies, for example, to a high degree of mobility among the population, a large proportion of rented homes, a poor standard of maintenance of housing, residential areas with an ethnically mixed population, the existence of gangs and declining participation in church activities. Work. Several factors in the Greenlandic labour market are assumed to have caused increasing crime rates, such as unemployment, frequent job changes and low-paid jobs with poor working conditions. Psychosocial problems and support measures. Drinking and alcoholism have been and still are widespread and must be assumed to have quite a substantial effect on both offences of violence and property offences. Some crimes are committed by persons suffering from various types of mental and personality disorders. The psychiatric system is not extensive, and probably some of these people do not receive the requisite support and treatment Influence of judicial system on crime. Among criminologists it is widely assumed that the likelihood of apprehension and punishment is more important for the general preventive effect of law enforcement than the severity of the punishment. In Greenland, it is considerably more likely than in Denmark that offences coming to the knowledge of the police will have consequences to an offender in the form of conviction or an extra-judicial decision. The police functions as a community police force and has great knowledge of local conditions, which is an undoubted help in investigations. Moreover, steps have been taken in recent years to make police work more problem-oriented (cf. chapter XVIII of the Report).

62 60 There is no agreement as to whether the general official threat of punishment has a large or small effect on crime in relation to the influences that people are otherwise exposed to in their daily environment. A comparison between the penal levels in Greenland and Denmark shows that custodial punishments are imposed 4.4 times as often for crime falling within the Danish Criminal Code as for crime falling within the Penal Code of Greenland. The most aggravated offences against the person result in custodial punishment equally frequently in Greenland and Denmark, whereas the frequency of custodial punishment is considerably lower in Greenland for most other offences. Concerning the special preventive effect of punishment, most studies show that no deterrent effect can be demonstrated. Punishment does not reduce the tendency to commit crime of persons who have already broken the law. A recidivism study from 1999 shows that the proportion in Greenland convicted of new crime within a three-year period corresponds to that of the Nordic countries. This indicates that the special options offered by the Penal Code for Greenland for rehabilitating work with the clients have either not yet been utilised or have not been particularly effective. However, development work within this field has been made in Canada and other countries, and today it is possible to reduce recidivism considerably through well-planned rehabilitation courses. This experience from abroad on what is required to prevent relapse into new crime has not yet been applied in Greenland, one reason being lack of resources. The establishment of a Prison and Probation Service in the 1980s and 1990s and the Commission proposals for expansion and rationalisation of the Service and its work are assumed to imply considerable potential for improving current endeavours. 3. Causes of crime influencing potential The vast majority of known influencing factors concern societal conditions which are beyond the criminal law system. Such factors include: initiatives for pregnant women, small children and their families, school children and youth; improvement of residential areas and local environments; more equal distribution of income, educational opportunities and work prospects; and special efforts against abuse and other deviant behaviour, and against violence. It is assumed that the Commission proposals for a special action for victims of crime and for strengthening and co-ordinating crime prevention efforts can help reduce crime, but they probably have a poor effect compared with the potential effect of changes in people s everyday social surroundings (family, school, local area, labour market, etc.). Some of the limited possibilities of the judicial system itself to influence crime are: giving higher priority to problem-oriented police work; restricting the availability of hashish and similar drugs;

63 61 introducing cognitive and social skills programmes in the Prison and Probation Service work; trying by positive means to make offenders participate in the ordinary social life during or after their sentence; increasing the efforts to motivate convicted offenders to get an education or a job making it easier for them to stop their criminal career, and to participate in leisure-time activities and bond with non-criminal young people. These possibilities are all incorporated into the Commission proposals, both to give priority to police tasks and to strengthen the rehabilitation efforts of the Prison and Probation Service substantially. 4. Victims of crime 4.1. Introduction. In Greenland the offender has a particularly central place in criminal justice because the Penal Code is based on the idea of rehabilitation through individually adapted sanctions. In recent years the excessive unilateral focus on the offender has frequently been criticised, and a desire for better efforts for those victimised by the criminal acts has been expressed many times. Such desire is in line with the increased international interest in the victims situation as manifested by the United Nations and the Council of Europe, among others. The Commission s point of view has been that a special effort is not just a goal in itself based on the victims need for help, information and support, but also of importance for understanding the design of the future sanction policy. Attempts should be made to enhance public confidence in the judicial system through increased efforts for the victims of crime so that sanctions against the offender are not the only response to crime Current arrangement. A distinction is made between different types of victims of crime. Obviously, persons exposed to fatal or mentally highly crippling crime (aggravated violence, rape, incest, etc.) have a particular need for help, and the need is particularly great in Greenland due to the high frequency of offences against the person. But the largest group of victims are the people exposed to property offences (theft, criminal damage, taking without the owner s consent, etc.). Also these people may need support and help. Certain types of damage caused by crime may be made good to some extent by means of financial compensation. Such damage is financial damage (damage to property, loss of earnings, etc.), physical bodily injuries that may require medical attention, and mental harm best relieved through various forms of help and support from friends, family and professional therapists. The same does not apply to damage to social relations, that is, the negative consequences of a crime to the victim s interaction with other people, not least the offender. Such damage is assumed to be particularly noticeable in societies like the Greenlandic one with a small population living in small, tightly knit communities and where the consequences of the crime may spread to family, neighbours, the entire local community. A good example of

64 62 restoration of damage to social relations by conflict resolution was the song contest in the old Greenlandic society. Here an attempt was made to restore mutual relations by a direct confrontation between offender and victim in the presence of the local community. A sharp contrast to this is the victim s withdrawn role in the modern administration of justice. With the introduction of courts according to the Western pattern, the victim has almost passed out of the picture. By and by, a number of welfare services have emerged for use by victims of crime. However, these services are assumed primarily to remedy the harmful effects on the victim s financial and health situation and only to a minor degree the mental and social stress caused by the crime. The possibilities of getting support from others than friends and family to cope with the mental problems are very limited in Greenland, and practically non-existing as concerns social damage Commission proposal. In future, the judicial authorities should assume a prominent role in the assistance to for victims. Police officers should be trained so that they are acquainted with the reactions of people who have been exposed to crime. If necessary, it should be possible to refer the victim to help and support from other authorities and persons. The victim should be offered a support person (family member or the like) during questioning. The victim should be notified of proceedings and progress in the case at certain distinctive stages: At the institution of proceedings, at the acceptance of fixed-penalty notices and at the scheduling of the trial. If the case is dismissed, the victim should be notified as the victim can appeal to the Director of Public Prosecutions. The court should notify the victim of the time of the hearing and the outcome of the case. If the victim is summoned as a witness, he or she should be able to bring a support person into court as well. During the examination, the victim may be asked about the damage caused by the crime, and here the defence counsel can cross-examine the witness. Other than in these instances it will be contrary to the principle of a fair trial to let the victim make oral or written statements. In certain criminal cases the court can assign a victim advocate to the victim. In cases of sexual offences committed against children below the age of 15, such an advocate has to be assigned. The victim advocate may be a social service employee or a person from the victim assistance service which the Commission proposes to establish. Depending on the nature of the damage, the damage can be relieved to a major or minor extent by financial damages or compensation. The Commission therefore finds that any claims for damages from the victim against the offender should be the immediate responsibility of the judicial authorities. According to the proposal, both the police and the court must assist in giving the compensation proceedings a prominent place on a par with the criminal proceedings. Referral to independent civil proceedings will then only be possible in special situations. It is further proposed to seek to establish a victim assistance service, particularly in the large municipalities, for offering or arranging acute assistance to victims, both mental support and

65 63 practical help. The model has been the Swedish victim counselling centres later introduced in Denmark as well and the crisis emergency centre in Narsaq. It is proposed that the Prison and Probation Service, the police, the health service and the social authorities cooperate to set up the victim assistance service. Volunteers and preferably a psychologist as well can be involved in the work. Local agreements should determine whether coordination is handled by the social service department, the health service or the Prison and Probation Service. On a national level, efforts should be coordinated by a central agency, possibly the (proposed) Greenland Crime Prevention Council [Det Grønlandske Kriminalpræventive Råd]. So far the Department of Social Services has accepted to function as central coordinator. The local victim assistance service should be able to provide post-incident help and support, including to encourage victims to form self-help groups, and cleaning-up teams can be established to turn out at short notice for acute assistance to people whose homes have been ravaged by burglaries or criminal damage. During its work, the Commission financed a pilot project with a victim assistance service in Narsaq municipality along these guidelines. The project received a positive assessment although it was poorly utilised. Attempts were made to continue the project, but it was hardly ever used and has now been discontinued. Some of the support functions performed by the victim assistance service are now carried out by the police and the social service official on duty. It has been criticised that victims of aggravated offences against the person and their relatives may meet the offender in their local community shortly after the judgment. The Commission therefore proposes that such offenders sentenced to prison should be placed under a semi-closed regime at the beginning and thus be unable to leave the prison. The Commission also proposes appointment, if possible, of local persons who take responsibility for preventing conflicts between the local community and the released person. Finally, the Commission proposes that the victim and the offender should be offered an optional mediation meeting to be organised by the public authorities. This is inspired by experience from the Danish victim/offender mediation scheme and from other Western countries practising mediation.

66 64 Chapter XIII Crime prevention measures 1. Introduction Compared with social policy initiatives concerning working conditions, housing conditions, school, culture, etc., the judicial system is assumed to have limited potential in itself for influencing crime, as mentioned above. Usually, the criminal law system only comes into play when a crime has been committed. But both for the individual and for society it is obviously best, in human and economic terms, to prevent people from being drawn into this system at all. The Commission has therefore considered whether enhanced crime prevention efforts can reduce crime in the Greenlandic society and thus reduce the need for subsequent intervention in the form of measures under the Penal Code. 2. Retrospective look The preventive approach is not a novelty in Greenland. The matter was first considered in the late 1960s in connection with deliberations on the organisation of the Prison and Probation Service in Greenland. At the same time, a probation service for children and young people and a socio-educational programme were established. After the introduction of the Home Rule, a basis for closer cooperation between the social service and the Prison and Probation Service concerning the social and therapeutic work and crime prevention work was provided, in particular, by the Greenland Parliament Statute from 1982 on interdisciplinary collaboration in social cases [landstingsforordningen om tværfagligt samarbejde i sociale sager]. 3. Current arrangement The Commission has gathered information on existing crime prevention projects to provide a number of adequate examples of the nature and width of the efforts. With Nuuk local authority as the initiator and driving force, formalised cooperation has been established since 1988 between the social service, schools, the police and the Prison and Probation Service, called the SSPK Cooperation. The SSPK Cooperation in Nuuk has also affected the initiatives of other local authorities concerning crime prevention. Other than in Nuuk, SSPK Cooperation schemes have now been established in seven towns and two settlements according to the information available, while a couple of local authorities have set up crime prevention projects under other designations. The work of the SSKP committees is aimed at large or small groups, but never specific named cases due to the duty of confidentiality. Such cases are considered by the interdisciplinary contact or cooperation committees for social cases with representatives from the health service, the primary and lower secondary school and the social service. The police and the Prison and Probation Service are not represented, but are invited when the committee considers a case involving these authorities.

67 65 With the central prevention office Paarisa as the coordinator, a nationwide network of preventive consultants employed by the individual local authorities has been established. The preventive consultants are trained in educating about and preventing alcohol and drug abuse in the Greenlandic local communities. The health committee of each municipality is responsible for local health plans determining the ranking of action areas for the preventive consultants. In addition to the interdisciplinary cooperation there are many special local projects in various places with various prevention purposes, different target groups and different forms of action, such as education, information, outreach activities, counselling, activation, etc. The many projects and initiatives are assumed to work well individually, but a common feature is the lack of follow-up and the poor information to others about the individual projects. The municipalities also show great mutual variations when it comes to the effort put into preventive work. 4. Commission deliberations and proposals Crime prevention work is assumed to consist partly of general prevention work aimed at the population as a whole or at specific (large) groups of the population, partly of a more specific efforts aimed at particular individuals to prevent individuals or (small) groups of individuals from starting on or continuing a criminal career. Particularly at the local level it is deemed necessary to coordinate the efforts of different authorities, etc., especially the social service, schools, the Prison and Probation Service and the police and to involve the health service. Since 1995, the administrative legislation has been drafted so that information on purely private personal data can be disclosed between the police and other authorities if such disclosure must be deemed necessary for crime prevention purposes. The Commission recommends that both general and specific crime prevention work be carried out within the framework of the SSPK Cooperation. If the local choice is to maintain the present arrangement with both an SSPK committee and a contact committee for the interdisciplinary cooperation in social cases, it is recommended to involve the police and the Prison and Probation Service in the work of the interdisciplinary contact committee. Moreover, it is recommended to expand the SSPK Cooperation geographically to all municipalities and to employ an SSPK coordinator full-time or part-time in all municipalities currently without one. With the proposed geographical expansion of the supervision activities of the Prison and Probation Service to all municipalities, surplus resources could be used for crime prevention. At the national level, formalised cooperation on crime prevention is wanted. It is also recommended to allocate funds from the Danish state and/or the Home Rule Government for pilot projects and to have such funds administered by a cooperation body. It is not recommended to let other central cooperation bodies handle the nationwide coordination of crime prevention as the task then risks not getting the attention and the priority that it deserves. The Commission thus recommends the establishment of a new cooperation body on crime prevention, the Greenland Crime Prevention Council. It is also recommended to involve a wide

68 66 group of participants whose professional knowledge may be valuable in the prevention work, such as the Association of Local Authorities in Greenland, trade organisations, employer organisations and trade unions. It is proposed to place the secretariat function with the Chief Constable, as in Denmark. Another option is to establish an independent secretariat solely assigned to working with crime prevention. Other concrete proposals are mediation and conflict-reducing schemes, such as victim/offender mediation, and prevention of conflicts between released persons and the local communities. Moreover, initiatives to counter crime victimisation and enhanced efforts in the field referred to as technical and tactical crime prevention (locks, neighbourhood watch, etc.).

69 Chapter XIV General provisions and the individual offences 1. General deliberations Introduction. This chapter discusses the conditions to be fulfilled for the court to consider a person guilty of violation of the Penal Code. The sanctions which the court may choose to impose on the offender due to the criminal act are dealt with in the next chapter XV on the sanction system. The conditions that must be fulfilled for a person to become liable under criminal law are partly the general conditions that always have to be fulfilled for an act to be considered criminal (rules on the age of criminal responsibility, intent and negligence, attempt and participation, and on self-defence and necessity), partly a description of the individual offences, that is, acts labelled criminal acts by the legislator s inclusion of them in the Penal Code Retrospective look. The Penal Code ended up comprising provisions on liability and actus reus widely conforming to the corresponding provisions of the general and special parts of the Danish Criminal Code. The intention behind this wording was to prevent the future legislation from making Greenland into a criminal refuge. However, compared with the Danish Criminal Code, the provisions of the Penal Code were simplified both in terms of numbers and form (cf. in detail chapter II, section 3, of the Report on the genesis and subsequent development of the Penal Code) Commission deliberations and proposals. The common ground between Greenlandic and Danish perceptions of the criminalised field is assumed to have grown since the introduction of the Penal Code. Higher living standards, industrialisation, education and information in Greenland of today, and an ever more extensive exchange of persons, goods and services between the two regions presumably make it even more important than before to have the same rules in Greenland as in Denmark. Greenland should still be prevented from providing a criminal refuge in fields subject to punishment in Denmark. Against this background, the revision of the provisions on liability and actus reus of the Penal Code has been based on the amendments to the Danish Criminal Code adopted since the Penal Code entered into force. Nevertheless, the conditions in Greenland and their development have still been crucial when determining whether to propose amendments to current provisions of or addition of new provisions into the Penal Code. It is proposed to maintain the simplicity of the Penal Code, limiting any problems of application of the individual provisions as much as possible. Moreover, according to the proposal of the Commission, the Penal Code should not include minimum or maximum penalties, so the differentiation of the actus reus which, in the Danish Criminal Code, widely serves sentencing purposes will still not be necessary. The Bill of the Commission thus contains no differentiated criminalisation of acts into differing degrees of gravity, such as is the case in the Danish

70 68 Criminal Code concerning, for example, the provisions on violence in different forms and with different effects. 2. General provisions The following describes the deliberations on individual general provisions which have led the Commission to propose amendments to or additions to current provisions As to its field of application, the Penal Code includes the requirement of jurisdiction as a condition for imposing sanctions, rules on the application of the liability provisions of the Penal Code and on violation of legislation other than the Penal Code. In terms of contents, the provisions conform to the corresponding provisions of the Danish Criminal Code, but they are worded in a more simple way The Penal Code has provisions on self-defence and necessity largely corresponding to the provisions of the Danish Criminal Code The rules of the Penal Code on negligence, attempt and participation substantially conform to the corresponding provisions of the Danish Criminal Code. Some more differentiated provisions of the Criminal Code on attempts serve mainly sentencing purposes and should not be introduced into the Penal Code. In cases of voluntary withdrawal from an attempt, current law does not, as in Danish law, permit exemption from criminal liability. The Penal Code provides a facultative (discretionary) option to impose a less coercive sanction or no sanction. It is assumed that the prospect of non-punishment may encourage those who have entered a criminal path to relinquish their activities. In view of this and of the legal unity between Greenland and Denmark it is proposed that voluntary withdrawal from an attempt should imply exemption from criminal liability It is not proposed to amend the minimum age of criminal responsibility, which is 15 years as in Denmark The Penal Code has detailed rules on reactions to mentally ill offenders in its part on sanctions. By contrast, the part of the Penal Code that deals with conditions for liability has no provision corresponding to section 16 of the Danish Criminal Code on exemption from punishment for persons of diminished responsibility at the time of the act due to mental illness or similar disorders. The reason for this is that the flexibility which should continue to characterise the sanction system as proposed by the Commission, and which allows the court to fix a targeted and individualised sanction adapted to the individual offender s situation, is assumed to give adequate consideration to mentally ill criminals.

71 In the present state of law, the imposition of corporate criminal liability requires authority under the legislation of the individual fields where the liability is to apply. This state of law corresponds to the state of law in Denmark. The Commission proposes addition of provisions into the Penal Code according to which collective liability still requires specific authority under the particular statute where such liability is desirable, and so that the usual residual provisions on potentially liable persons and conditions for liability corresponding to the Danish provisions are inserted into the Penal Code Under current law all violations of the Penal Code are subject to public prosecution, meaning that the prosecutor determines whether to institute criminal proceedings. The reasoning is that a crime is not just a violation of the victim, but is considered a violation of the general interests of society. This is true to a much lesser extent in case of defamation. It is therefore proposed to let defamation become subject to private prosecution. 3. Individual offences This section describes the deliberations on the individual types of offences that have led the Commission to propose amendments or additions to the current provisions, which are thus mainly kept with their present wording. The most recent thorough revision of the Penal Code was the 1978 amendment. Subsequent legislative amendments in the Danish part of the realm were therefore particularly examined for potential consequences to the wording of the Penal Code of Greenland. The review of the Commission was basically concluded at the end of The Penal Code part on offences against the independence and safety of the realm (such as treachery, espionage and subversive activities) conforms to some extent to the corresponding Danish provisions. Other than linguistic adjustments, no amendments are proposed to this part The Penal Code part on offences against the Constitution and the supreme authorities of the realm, etc. (such as riots and election fraud) to some extent criminalises the same activities as the corresponding Danish provisions. However, in 2002 several provisions of the Criminal Code, including the part on the Constitution, etc., were amended in connection with the so-called terrorism package, which was partly based on obligations under public international law. In view of this, the Commission proposes a revision of this part of the Penal Code in accordance with the amended Danish provisions The Penal Code part on offences against public authority (provisions on bribery, violation of law enforcement, unlawful exercise of authority, etc., and abuse of particularly protected badges) largely criminalised the same activities as the corresponding Danish provisions until recently. This also applied to the Penal Code provisions on active and passive bribery and on the handling of stolen property.

72 70 In 1997, Denmark acceded to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and in 1999 the Council of Europe Criminal Law Convention on Corruption and the associated Agreement establishing the Group of States against Corruption (the GRECO Agreement). Consequently, the Danish rules on aggravated VAT fraud, EU fraud and bribery of foreign public officials were amended in In view of Denmark s public international law obligations under these conventions, etc., and of the legal unity between Greenland and Denmark, it is proposed that the Penal Code provisions on active and passive bribery be amended to comprise bribery of foreign public officials, etc., and it is also proposed to extend the provision on handling of stolen goods to comprise the proceeds from active or passive bribery of such acts. In addition, it is proposed to amend the Penal Code provision on kickbacks and secret commissions (active and passive bribery in private contractual relations) so that the provision will also comprise incidents involving non-pecuniary benefits. The Commission has noted that an amendment of the Danish Criminal Code in 2002 made escape of prisoners a criminal offence as a violation of law enforcement. The Commission did not find any reason to propose such criminalisation in Greenland, but finds that escape from the prisons as so far should be dealt with by disciplinary action (cf. chapter XVI, section 6.10 of the Report) The Penal Code part on offences against public peace and order to some extent criminalises the same activities as the corresponding Danish provisions (unlawful alarms, alcohol abuse, etc.). Other than linguistic adjustments, no amendments are proposed to this part The Penal Code part on offences committed while exercising public office or function (such as abuse of public authority, duty of confidentiality and dereliction of duty) widely criminalises the same activities as the corresponding Danish provisions. However, the Danish provisions on confidentiality were amended in 1985 because the authorities leave the execution of certain tasks to private enterprises to a not inconsiderable extent, which means that persons attached to these enterprises sometimes gain knowledge of or access to even very confidential information. It is assumed that similar views apply as concerns the state of law in Greenland. It is therefore proposed to amend the Penal Code provisions so as to correspond to the Danish provisions, thereby extending the group of persons under a duty of confidentiality, by adding a general provision on a duty of confidentiality for persons who are or have been involved in tasks carried out by agreement with a public authority. Moreover, it is proposed to criminalise the disclosure of information on individuals purely personal details as well as information which is confidential for reasons of national security or the defence of the realm The Penal Code part on false evidence and false accusation widely criminalises the same activities as the Danish provisions applicable until In the light of the technological developments, the Danish provisions on incorrect statements were amended in 1996 to include incorrect statements made, for example, on computer diskettes or by . Moreover, the provision on false evidence was amended in 2002 to comprise telecommunications as

73 71 well. The Commission proposes an amendment and linguistic updating of the Penal Code provisions to conform to the current Danish provisions The Penal Code part on offences in respect of money to some extent criminalises the same activities as the corresponding Danish provisions. No amendments are proposed to the Penal Code provisions on counterfeiting or debasing of money or issuing of such money The Penal Code part on offences in respect of evidence (such as forgery and abuse of documents) widely criminalises the same activities as the corresponding Danish provisions, and no amendments are proposed The Penal Code part on offences causing danger to the public (arson, stoppages, etc., unqualified medical practising and causing danger of diseases) to some extent criminalises the same activities as the corresponding Danish provisions. Under the Penal Code provision on arson it is only possible to impose criminal liability in cases where the arson was committed against another person s property or against the offender s own property while endangering the lives of others or essential societal assets. It is proposed to expand the provision to comprise arson also in cases where the arson is committed against the offender s own property with intent to defraud fire insurance companies, mortgagees, etc. Attacks committed by particularly aggravated means such as explosion, etc., can only, under current law, attract criminal liability under the Penal Code provisions on violence and damage to property. Independent criminalisation is proposed if the methods are explosion, dissemination of noxious gases, flooding, shipwreck, railway accidents or other traffic accidents. So that the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its related Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf can include Greenland, it is proposed to extend the Penal Code provision on seizure of aircraft to include seizure of vessels and other collective means of transport or means of carriage of goods as well Of the Penal Code part on harmful commercial activities (begging, prostitution, unlawful idleness, betting and inducement to emigration) only unlawful gambling is criminalised under the Danish Criminal Code today. The remaining Danish provisions have been repealed. It is proposed only to criminalise unlawful gambling and to repeal the rest of the Greenlandic provisions. Prostitution is a social problem best solved by social policy initiatives and not by criminal law measures. The criminalisation of unlawful idleness, begging and inducement to emigration is antiquated and of no importance in practice. As a consequence of this proposal, the heading of the part should be amended into Unlawful gambling.

74 The Penal Code part on offences against family relationships (bigamy, incest and violation of family and household) to some extent criminalises the same activities as the corresponding Danish provisions. It is proposed to transfer the Penal Code provision on evasion of parental responsibility to this part, where it belongs naturally (the provision is placed under offences against personal liberty in the Penal Code) and to update the provisions linguistically The Penal Code part on offences against sexual morality (according to the proposal: sexual offences ) (rape, sexual exploitation, sexual relations with children, seduction, procuring and indecent exposure) widely criminalises the same activities as the corresponding Danish rules. It is proposed to extend the provisions on rape and sexual exploitation so as to correspond to Danish law, the provisions then including acts committed against men and by women. It is proposed to extend the provision on sexual exploitation so that abuse by an employee or supervisor is criminalised although such abuse cannot be considered aggravated. Danish law has been amended correspondingly. The Penal Code criminalises sexual relations with a child under 15 years of age. If a young person is under 18 years of age, criminal liability can only be imposed under current law in case of concurrent aggravated abuse of the dependence following from being subject to the authority or care of a teacher or educationalist. It is proposed to introduce direct protection of such minors against sexual assaults by a teacher or educationalist so that sexual intercourse or sexual relations other than intercourse with a person under 18 years of age who is the offender s adopted child, stepchild or foster child or has been entrusted to the offender s care for education or upbringing is criminalised as seduction when the offender knew the minor s age or acted negligently in that respect. As a result of a large number of national and international initiatives to combat various forms of exploitation of children, Danish law has introduced provisions on criminalisation of customers of prostitutes under 18 years of age. It is proposed to introduce a corresponding provision into the Penal Code. As a consequence of the proposed decriminalisation of prostitution, it is also proposed to decriminalise passive procuring, meaning living together with or being kept by a prostitute. The Penal Code has no provisions on child pornography. It is proposed to criminalise the commercial sale or distribution, etc., of pornographic photographs or the like of children. Also possession of child pornographic material and merely acquainting one-self with such material against consideration should be criminalised in line with Danish law, according to the proposal. The Commission has particularly considered it important that the provision must be assumed to contribute to the prevention of use of children for child pornographic recordings

75 73 that would, in themselves, constitute an infringement of the children s integrity, and that such provision would signify a clear rejection of sexual abuse of children. The Penal Code criminalises the use of children under 15 years of age as porn models. It is proposed to extend the protection against being used as a porn model to comprise children and young persons under 18 years of age. Regard for Denmark s obligations under public international law has also been emphasised in this connection The Penal Code part on offences against the life and body (homicide, violence, abandonment of human lives, criminal negligence in connection with child birth, negligence of duty to help, criminal negligence of dangerous items and endangering the lives of others, etc.) widely criminalises the same activities as the corresponding Danish rules. The Penal Code provisions on endangering the lives of others, etc., do not, as the Danish provisions, criminalise causing danger of infection with fatal or incurable diseases. The reason for the Danish rules is that it may be offensive to the public s sense of justice if a person, knowing that he or she is infected with the HIV virus, has sexual intercourse with or otherwise exposes others to the infection without seeking to protect them or acquainting them with the risk of infection. Since HIV/AIDS is a large health problem also in Greenland, it is proposed to seek to counter such conduct by criminalising any person who wantonly brings about danger that someone be infected with a fatal and incurable disease. It is proposed to repeal the current provision on criminal negligence in connection with childbirth as superfluous as the act is comprised by the provision on abandonment of human lives. It is also proposed to repeal the criminalisation of a man s negligence of duty to help a women made pregnant by him as being outdated The Penal Code part on offences against personal liberty (unlawful coercion and deprivation of liberty) widely corresponds to the Danish rules (it is proposed, as mentioned above, to transfer evasion of parental responsibility to the part on offences against family relationships). However, the Penal Code contains no provisions on trafficking in human beings corresponding to the provisions of the Criminal Code. Despite the initial intention of not including provisions in the Penal Code that particularly serve sentencing purposes, it is proposed to insert provisions on this in view of the global nature of such trafficking The Penal Code part on invasion of privacy and defamation of character (threats, defamation and discrimination on the basis of race, etc.) widely criminalises the same activities as the corresponding Danish rules. However, the Penal Code provisions on invasion of privacy contain no provisions on data crime. It is proposed to criminalise the act of gaining access to another person s data and software intended for use in electronic data processing equipment.

76 74 It is proposed to extend the Penal Code provision on discrimination against a group of persons on the basis of race, colour, national or ethnic origin or religion to comprise discrimination on the basis of sexual orientation as well Provisions on offences against animals by cruelty to animals are given in an independent part of the Penal Code. In Danish law, similar protection is found in legislation other than the Criminal Code. No amendment to the criminalisation in the Penal Code is proposed The Penal Code part on property offences (theft, misappropriation of lost property, fraud, embezzlement, criminal breach of trust, misappropriation of funds (fraudulent preference), usury, handling of stolen goods, criminal damage, taking without the owner s consent, and taking the law into one s own hands) widely criminalises the same activities as the corresponding Danish rules. The part contains no provisions corresponding to the Criminal Code rules on computer fraud. It is proposed to introduce such provision in the Penal Code. Offences in Greenland that would result in conviction for extortion under the Danish Criminal Code, and offences that would result in conviction for robbery are instead adjudicated under the Penal Code as theft combined with unlawful coercion or violence. It should be made clearer that the Penal Code also provides protection in such cases of attack against the personal freedom of action in relation to financial transactions, and it is therefore proposed to insert provisions on extortion and robbery into the Penal Code. Under the Penal Code, criminal damage (vandalism) is criminalised as under Danish law. However, it is only possible to impose criminal liability for criminal damage to the offender s own property under the Penal Code provision of misappropriation of funds, which presupposes that the offender intends to obtain a gain for himself or others by his act. It is proposed, in line with Danish law, to extend the protection of a creditor s right to satisfaction so that the protection will also comprise transactions where the offender does not act with intent of obtaining any gain. Finally, it is proposed to extend the Penal Code provision on handling of stolen goods so that it corresponds to current Danish law, making the criminalisation in future comprise the proceeds of any criminal act.

77 75 Chapter XV Sanctions 1. General deliberations 1.1. Introduction. When the court finds a person guilty of having violated the Penal Code, the court has to decide which penalty or sanction to impose on the offender. The Penal Code from the 1950s differs from other criminal codes by not using the concept of punishment and by not stipulating maximum or minimum penalties for the individual offences. The Code allows a number of very diverse sanctions. The court can freely choose between these sanctions for any offence. This chapter deals with the sanction system, its development and function in practice and its future design. The question of enforcement of the sanctions and the pertaining rules is discussed in the next chapter Offender principle offence principle. To determine a primary principle for the choice between the different sanctions, the pure offender principle and the pure offence principle are described. According to the pure offender principle, only the individual offender s personal and social circumstances are considered, without regard for the type and gravity of the crime committed. The choice of sanction only has one purpose: to prevent this particular person from committing crime in future. The sanction may be a caution, treatment/rehabilitation with or without deprivation of liberty, or rendering harmless by means of incarceration. The court has to find the particular, individually adapted sanction that can prevent future crime, to the benefit of the offender s surroundings and himself or herself. Maximum or minimum penalties are superfluous. The sanction ceases when the goal of no risk of re-offending has been reached. All sanctions are indeterminate. The consequence of the pure offender principle is that the courts are in sovereign control of the choice and meting out of the penalty, only limited by the options provided by law. No importance is attached to fundamental principles of equality, proportionality and foreseeability. According to the pure offence principle, only the criminal offence, its type and gravity are considered. Apart from establishing the offender s guilt there is no room for taking personal or social circumstances into account. The sanction is used as a punishment because an offence has been committed. To choose the sanction, the court merely needs to know the exact place on the scale of sanctions where the relevant criminal offence with its mitigating and aggravating circumstances fits in. Then the sanction (type, severity and length) follows automatically. Nor does the enforcement authority have any independent authority as this may result in arbitrariness.

78 76 According to the pure offence principle the courts have no influence on the choice of sanction and meting out of the punishment, for which the legislator has laid down detailed rules. No importance is attached to humane considerations Retrospective look. The Penal Code came into being on the basis of the humanistic currents, characterised by special prevention, that reigned in Europe in the middle of the last century. The main emphasis was on special prevention and rehabilitation, also during enforcement of the sanctions. The starting point was no deprivation of liberty except in case of criminals endangering other people. However, when choosing the sanction, the judge had to take into account the nature of the offence as well as the regard for the offender s personality. This starting point is described as a modified offender principle (cf. chapter II, section 3, of the Report). As to the development in case-law relative to the Penal Code, the Commission studies of the practices of prosecution and sentencing confirm that to a wide extent tariffs have gradually been introduced for the sanctions imposed for specific offences. The principle of equality, the regard for similar sanctions for similar acts and the regard for the gravity of the offence have received a more prominent place. At the same time, Commission studies of crime trends and the use of sanctions show that the sanction of imprisonment and the sanction of fine, in particular, are applied to a great and unforeseen extent. This confirms the assumption that these sanctions are chosen in several cases where sanctions involving treatment or rehabilitation should have been chosen if the pure offender principle was applied. In current case-law, this principle has thus been toned down. To sum up, current case-law applies an offence principle to a wider extent than before. The courts have been responsible for this development without much interference from the legislator, as the primary sanction principle of the Penal Code has been unchanged throughout 50 years Discussion. It appears from the terms of reference that it would still be desirable to maintain the original fundamental idea of the Penal Code with rehabilitation as the basis of criminal sanctions. However, it also appears that when preparing its draft for a revision of the Penal Code, the Commission should be aware of the debate on minimum and maximum penalties and types of sanctions in Greenland in recent years. This debate particularly relates to the increasing dissatisfaction with the sanction system, such as concern that one can meet individuals in the street that have just been sentenced to imprisonment for aggravated violence, that people drink or are violent although they are subject to a supervision order, that fines have no effect because they are not paid, that it is an extra punishment on top of the sanction to be sent to a prison in Denmark and that fines or imprisonment is used in respect of individuals who need rehabilitation to prevent them from relapsing into crime. Moreover, during the work of the Commission, politicians in Greenland have stated that in future more importance should be attached to the regard for equality (same sanc-

79 77 tion for same offence), and that regard for rehabilitation is not relevant at all forms of offences (for example not in case of economic crimes) Primary principle. The Commission found that it would not be desirable to aim at either the pure offender principle or the pure offence principle, but has endeavoured to include advantages from both principles and sought to avoid the drawbacks. Thus, on the one hand the Commission members have agreed that considerable importance should still be attached to the regard for rehabilitation which is contemplated in the terms of reference, as mentioned above. On the other hand, a modern society like the Greenlandic society must also attach a not inconsiderable importance to the offence, partly for reasons of equality, partly for crime prevention reasons. It is proposed that this perception be expressed in the provision on the primary principle for the judge s choice of sanction with the following wording: In the choice and meting out of the sanction, regard must be had to: 1) the gravity of the offence, including the interest of society in discouraging acts of the type in question, and 2) the offender s personal situation, including what is deemed necessary to keep the offender from committing further offences. It appears from the wording that the two principles are of equal importance. This proposal constitutes no vital break with the current scheme, particularly in the light of the development in case-law described above, to which the Commission does not object Choice in the individual case. The general provision on application of sanctions only provides limited guidance to the courts on what sanction to impose in a specific criminal case. Therefore, various models are considered of how to provide more detailed guidelines for the choice and meting out of the sanction in the specific case. The Commission has considered several models of how to rank the offences, either by their nature (violence, vice, property offences, etc.) or by their gravity (such as theft or violence as opposed to rape or homicide). According to both models, the idea was to state that for some offences possibly only the offence principle was to be applied and for others possibly only the offender principle. However, both models were rejected. Helene Brochmann s study Recidivists shows, among other things, that at least habitual offenders typically have a mixed pattern of crime. In addition, the consequences of applying one of these models would either be that treatment resources would be spent on the wrong persons or contrary to the offence principle that due regard was not had to the gravity of the offence. Particularly in case of the gravity model, it would be difficult to determine the limits of the gravity model in the Penal Code, so that the model would still to a considerable extent have to allow the courts a rather unlimited discretion. Instead, in the model proposed, the conditions for applying the individual sanction are governed by the Penal Code. Depending on their coerciveness, the sanctions are ranked on a sanction ladder with a caution as the mildest sanction and indeterminate imprisonment (safe

80 78 custody) as the most severe sanction. By constructing the sanction system by severity the regards for proportionality and equality are emphasised to a higher degree than so far. The court has to assess in the individual criminal case, which type of sanction basically equals the offence committed, including an assessment of how far up or down the sanction ladder the relevant reaction has to be found. This assessment of severity should not focus solely on the criminal act in question, but should be an overall assessment which may also include considerations such as age, motive and whether the offence is a first-time offence or a repeated crime. Aggravating circumstances, such as previous similar crime, may lead to a sanction one rung further up than would otherwise have been applied, and conversely with mitigating circumstances, such as young age. A specific need of rehabilitation may result in a sanction one rung lower, and the rehabilitation elements of each rung must appear from the new scheme. This makes allowances for the offender principle. Stating the criteria for use of the individual sanction in the individual part on the sanction in question ensures that the legislator has a greater, more overall influence on the field of application of the individual sanctions than previously. With this wording it has not been found necessary or expedient to introduce other limitations, such as maximum or minimum penalties, to the judge s opportunities of having, in principle, the entire catalogue at his or her disposal in each case. At the same time, the sanction ladder model emphasises more clearly than today the relative severity of the sanctions. This means that annual reports on sentencing practice may provide increased public and political insight into the application of the sanctions. This will provide a starting point for general political deliberations on the function of the system. 2. Presentation of individual sanctions The description of the individual sanctions is introduced below with the proposed criteria for their field of application. The contents are also roughly outlined Cautions can be used according to the proposal if the offence is of particularly little severity, and particularly when the offender has not previously been sentenced to a sanction. It is proposed to rank cautions as the mildest sanction on the sanction ladder, and they should be used, as so far, in the special cases where the offence is so small that there is no basis for imposing fines or other sanctions Fines can be used according to the proposal if a more severe sanction is not necessary. In addition, a fine can be imposed as an additional sanction to other sanctions, particularly when the defendant has obtained or intended to obtain a financial gain for himself or others by the offence. In determining the amount of the fine, regard should be had to the offender s ability to pay and the gain obtained or intended. The use of fines should be limited as the sanction system is expanded in general. The power to collect fines should remain with the police, according to the proposal. In addition, the court

81 79 should still be able to convert the fine into imprisonment of short duration (not exceeding 60 days) Suspended imprisonment can be used according to the proposal if: (1) it is deemed sufficient to prevent the offender from committing further offences; and (2) regard for the gravity of the offence does not make such sanction inappropriate. Suspended sentences in their present version with deferred fixing of the sanction during a probation period are used to a very limited extent because the sanction is not perceived as any real coercion and therefore enjoys no respect with the offenders. For crime prevention reasons, among other things, it is proposed to apply suspended sentences with a fixed sanction so that the offender knows what it will cost to commit another crime. The court thus fixes the length of the imprisonment in the sentence and decides at the same time that enforcement of the sanction will be suspended and will lapse at the end of a probation period. No other conditions than a crime-free probation period are imposed on the offender. However, the possibility of combining a suspended prison sentence with a fine is retained. If the court finds that a suspended prison sentence is not sufficient to keep the offender from committing further offences, but the offender needs the support implied by supervision, the court should instead choose a sentence of supervision Sentences of supervision can be used according to the proposal if: (1) the offender needs support or treatment; (2) he or she needs the control implied by the supervision; and (3) regard for the gravity of the offence does not conclusively make such sanction inappropriate. At the introduction of the Penal Code and at subsequent revisions, probation sanctions were intended to have a prominent place in the sanction system. So far, due to lack of resources, probation sentences (or as proposed: sentences of supervision ) have not had any prominent place among the sanctions. In accordance with the desire expressed in the terms of reference of maintaining the original fundamental idea of the Penal Code of rehabilitation as the basis for sanctions, it is recommended that rehabilitation sanctions, including sentences of supervision, take a prominent place in future in the sanction system. The Commission proposal of expanding the local probation offices of the Prison and Probation Service and of rationalising the supervision activities must be seen in this light (cf. chapter XVI, sections 3 and 5, of the Report). As part of the rationalisation, it is proposed to replace the old term sentence of probation with sentence of supervision, thus also marking the control aspect of the sanction. The Penal Bill lists a number of conditions that can be attached to a sentence of supervision. Conditions may aim directly at keeping the offender from committing new crime, for example a prohibition from staying at specific places, and aim at rehabilitation of the offender, such as conditions of education or training, treatment for abuse, etc. If the offender breaches the con-

82 80 ditions, the supervisory authority will bring the case before the court via the police, who can also in such cases promptly arrest and detain the offender until the court can consider the case Community service sentence which is proposed as a new sanction can be used according to the proposal, if: (1) the offender is found suited for it; and (2) a suspended prison sentence or sentence of supervision is found inadequate in view of the gravity of the offence. A community service sentence corresponds to a (suspended) supervision sentence where the court also decides that the offender must perform unpaid community service in his or her spare time for at least 40 and not more than 240 hours. The work duty must be satisfied within a maximum period not exceeding two years, to be determined by the court. During the period, the offender is subject to the supervision of the Prison and Probation Service concerning observance of the work duty and any other conditions found expedient by the court. If the offender violates the decision of community service or any other conditions, the case will promptly be brought before the court which can quash the sentence and in that connection impose another sanction. A working group appointed by the Commission to consider initiation of community service in Greenland chaired by the Chief Constable and with representatives from all relevant organisation has considered and recommended the tasks intended to be carried out in connection with community service and the provision of these tasks, including how to ensure that community service does not conflict with the general labour market, for example, by occupying jobs that would otherwise be available to other citizens. The proposed model has been compared with international obligations (European Convention on Human Rights and the ILO Convention on Forced or Compulsory Labour). Community service should not be confused with the sanction (forced) labour formerly used in Greenland. The international obligations are assumed not to prevent a community service scheme along the proposed guidelines. Importance is attached to the type and nature of the work to be imposed on the offender, including that it is not hard, physical work only intended to act as a punishment, but meaningful, manageable work reasonably defined in terms of time and suited to involve the offenders in activities with others in a way that furthers rehabilitation. It has also been emphasised that the court is allowed great leeway in terms of choosing the most appropriate sanction in the specific case. The sanction is therefore not limited to any particular types of offences Sentence of imprisonment and supervision as a combination is proposed as a new sanction to be used, according to the proposal, if a sentence of supervision or community service is not found adequate in view of the gravity of the offence. With this sentence, the court decides that the offender is to be imprisoned for a specific period not exceeding three

83 81 months and also decides that the offender shall subsequently be subject to supervision and any other conditions fixed in the sentence. The field of application is cases where regard for the public s sense of justice, including victims, makes imprisonment appropriate, while regard for the offender s personal situation makes initiation of supervision and maybe other rehabilitation measures appropriate upon release. This neutralises the criticism against the sanction system as being too slack without thereby compromising rehabilitation considerations. Together with the community service sentence, this sanction serves to reduce the gap between less coercive sanctions, such as suspended prison sentences and supervision sentences, and the sentence of imprisonment. If required, the offender can also quickly be removed from his or her current environment so that the Prison and Probation Service has an opportunity to plan the supervision period together with the offender Imprisonment can be used, according to the proposal, when it is necessary: (1) to prevent the offender from committing further crime; or (2) in view of the gravity of the offence. The conditions for applying imprisonment as a sanction do not differ in nature from those currently applicable. The court determines the length of the incarceration, which still cannot exceed ten years (imprisonment for an indeterminate period safe custody is separated as a specific sanction, cf. right below). In view of victims, the local community and the public s sense of justice, it is proposed to design the prisons so that the Prison and Probation Service can place offenders who have committed offences against the person under a semi-closed regime for a period after the judgment so that they have no opportunity to leave the prison for employment or other lawful purposes. Access to administrative release on parole under the current rules is maintained, but subject to special judicial review. In case of breach of conditions, it is proposed that the matter will have to be brought before the court (and not, as now, the Prison and Probation Service Board [Kriminalforsorgsnævnet], which it is proposed to dissolve). Relatively, the number of detainees is very high in Greenland compared with other countries. Part of the explanation is that although the aggregate level of crime is slightly lower in Greenland than, for example, in Denmark, proportionately more offences against the person are committed in Greenland. In addition the police has a very high clearing-up rate, thereby bringing relatively more cases to court. It should be noted in this connection that the Commission does not intend to raise the sanction level by its proposals Safe custody for an indeterminate period can be used according to the proposal, if: (1) the offender is found guilty of homicide, robbery, deprivation of liberty, aggravated violence, threats of the type referred to in section 94, rape or other aggravated sexual offence or arson or an attempt of any of the offences mentioned; and

84 82 (2) the offender is assumed to present immediate danger to the life, limb, health or freedom of others in view of the nature of the offence committed and the information on the offender, including particularly on previous offences; and (3) application of safe custody is necessary to avert such danger. Safe custody is the top rung on the sanction ladder (and thus not an alternative to it). The conditions for applying safe custody widely correspond to the current access to incarceration of these people. It is proposed to reintroduce the term safe custody in the Penal Code as a designation of indeterminate placement of the group of criminals who have committed offences against the person and who present an immediate danger to other people. The terms of reference assume that the Commission will consider and describe how the persons held in safe custody in the Herstedvester Institution in Denmark can be returned, that is, serve their sentences in a special prison in Greenland. According to the Commission proposal, safe custody should be served in future in a newly established, closed safe custody unit in Nuuk. The sanction is otherwise served according to the rules on imprisonment, but with the essential modification that variation and termination of the sanction can only be determined by the court Sentence of special remedial measures for young people can be used according to the proposal if the offender is under 18 years of age, or in special cases under 20 year of age, at the time of the judgment. In a sentence of special remedial measures for young people, the court decides that the offender should be subject to supervision by the social authorities with remedial measures according to the social legislation. The court also determines that the young person must submit to the rules imposed on him or her by the social authorities. However, this can only be done to the extent that the social authorities have accepted such supervisory role. The court must fix a maximum period for the sanction, generally not to exceed two years (and never more than three years). A similar provision of the current Penal Code has only been used to a very limited extent as the social authorities still only have limited resources. In view of both consistent and constructive efforts towards young people, the Commission therefore considers it extremely important to establish a binding partnership between the police, the Prison and Probation Service and the social authorities based on local cooperation agreements and applying the resources available locally. Within the framework of this provision, a wide range of initiatives of varying intensity can be applied from guidance and supervision to institutional placement. The sanction therefore cannot be fitted into the sanction ladder, but is an alternative to it. As so far, it will not be possible to sentence young people under 18 years of age to imprisonment unless special cir-

85 83 cumstances necessitate such placement. In special cases, cautions, fines and possibly community service can be applied upon a specific assessment. So as not to make it difficult for the young person to find his or her place in society, it is recommended that this sanction should not appear from the personal criminal record when exhausted (after expiry of the maximum period of the sanction fixed by the court) If, at the time of the offence, the offender was mentally ill or in a state of equal unsoundness of mind, or was mentally retarded, the proposal allows sanctions to be imposed under special provisions when it is necessary to prevent the offender from committing further offences. These sanctions are basically imposed for an indeterminate period in case of offences against the person. In other cases the proposal sets out a maximum period, with the possibility of extension in special circumstances. The court will decide on variation or termination of sanctions. According to the proposal, the contents of the special sanctions for the mentally ill, etc., will be so flexible that the court can fix the sanction deemed expedient in the specific case with due regard to both security and treatment aspects. The sanctions available largely correspond to the forms of sentence used at present, that is, ranging from a sentence of committal to a psychiatric hospital, over a treatment sentence, to a supervision sentence with conditions of psychiatric treatment. However, the special sanctions for the mentally ill are alternatives to the ordinary sanctions on the sanction ladder, which depending on the offender s condition can also be applied. (For the sake of the simplicity of the Penal Code, it is still proposed not to introduce a provision in the Penal Code corresponding to section 16 of the Danish Criminal Code on diminished responsibility). The Home Rule Government is responsible for the health service, including the treatment of mentally ill criminals. The Home Rule Government has planned an expansion of the current psychiatric treatment system within a number of years, both in the district psychiatry and establishment of a closed psychiatric ward in addition to the existing open ward at the Queen Ingrid Hospital in Nuuk. This means that the psychiatric patients committed to a psychiatric hospital in Denmark by court sentence can return to Greenland. There is no prospect of being able to take back for treatment the most dangerous mentally ill, who are committed to the safe custody institution of Nykøbing Sjælland, and the mentally retarded persons. According to the proposal, the court will still be able to decide on treatment at a hospital or other institution in Denmark as well Forfeiture of rights can be applied in addition to other sanctions. Under the current provisions, forfeiture of rights (to carry on a trade) is conditional upon immediate danger of abuse. The direct reason for forfeiture of rights is prevention. Therefore, forfeiture of rights cannot be imposed for penal reasons, that is, as a punishment in itself. In addition, the danger of abuse must be associated specifically with the activity in question (criterion of foreseeability).

86 84 It is proposed that the current rules, which correspond to the Danish rules on forfeiture of rights with a few deviations of a linguistic and procedural nature, be maintained with a few updates Confiscation and forfeiture can be applied in addition to other sanctions. The current provisions on confiscation and forfeiture largely correspond to the Danish provisions, and it is proposed to maintain them with a few updates. 3. Transfer and cessation of sanctions Enforcement of a sanction imposed can only be transferred to one of the other parts of the realm if expressly authorised by law. With the increasing intercommunication and the greater mobility, also for criminals, it is proposed to introduce a possibility of transferring all sanctions with supervision, except for special remedial sanctions for young people (who are locally anchored) to and from Greenland and Denmark. It should also be possible to transfer custodial sanctions between the two parts of the realm, but in view of its nature, a right to judicial review of the transfer decision is introduced. Under the current rules, the sanction ceases by limitation under provisions which are simpler in their structure than Danish legislation. In addition, sanctions cease at the offender s death and may cease by pardon. The current rules are generally worded in an expedient and up-to-date manner, and it is therefore proposed to maintain them.

87 85 Chapter XVI Enforcement of sanctions 1. Introduction That a person has been charged with and indicted for a crime and has been convicted and sentenced to a sanction by the court in itself expresses the reaction of society to crime. But this is not the end of the reaction, of course. The sanction imposed must be enforced, that is, the offender must pay a fine, be subjected to supervision or be imprisoned, or perhaps be subjected to various combined measures. The criteria emphasised by the legislator in the choice of sanction must also be reflected in the enforcement if the sanction is to act as intended. It appears from the preceding chapter that, according to the Commission proposals, the choice of sanction must take into consideration both the gravity of the offence and the offender s personal situation. Naturally, these considerations are also reflected in the Commission s proposal for the practicalities of the enforcement. On the one hand, regard for effective enforcement (law enforcement) implies that the Bill of the Commission lays down a fixed framework for actions during the enforcement, be they collection of a fine, implementation of supervision or deprivation of liberty. The framework narrows with the gravity of the offence. On the other hand, regard for crime prevention and the offender s rehabilitation implies that the Prison and Probation Service, as the enforcement authority, should have discretion within this framework to adjust the enforcement with such regard in view. Certain discretionary administrative decisions are of such coercive nature or are otherwise made by the court that a particularly easy access to judicial review is proposed. 2. Current arrangement 2.1. Retrospective look. As mentioned above, when the Penal Code was introduced in 1955, its basic concept was to use probationary sanctions combined with supervision, such as a sentence of work or education, placement in family care or the like. However, there was no tradition of an independent probation authority. The Administration of Justice Act had established an organised police force which was now, as one of many tasks, entrusted with organising enforcement, including finding suitable persons to supervise the offenders in their local communities. If rehabilitation was deemed unnecessary, a fine could simply be imposed. A need for short-term imprisonment was accommodated in 1956 by the establishment of the first prison, the safe custody home in Nuuk with six places. However, the safe custody home and later the prisons proved unable to provide adequate security in respect of the most dangerous criminals, and in 1958 the first offender was transferred to the Herstedvester Institution in Denmark for safe custody. With the rapid development of society, it proved impossible within a few years for the police to find a sufficient number of suitable and willing hosts and supervisors, and therefore the sanction most frequently applied became a fine, even for aggravated offences. Then an increasing professionalisation of sentence enforcement started, both in prisons and outside.

88 86 In 1967 the safe custody home was replaced by a new prison with 18 places, extended in 1976 to 28 places. At the same time two new prisons (at Qaqortoq and Aasiaat) were built so that the prison capacity had risen to 44 at the end of the 1970s. The inmates were mainly occupied at local workplaces. Due to continued shortage of places, the three prisons were extended during the 1980s and 1990s so that there was a prison capacity of 74 places in Greenland in 2001, still subject to the authority of the Chief Constable. Safe custody prisoners and mentally ill criminals are still being sent down to Denmark. Police detentions, intended for drunks and detainees, have also been used for prison inmates, particularly in peak load situations, such as in late Concerning the most recent development, please see section 7 below. Concurrently with the expansion of prison capacity, the probation work was organised, from 1965 through a head of probation who reported to the Chief Constable. As time went by, trained staff was employed in a few towns to be in charge of supervision activities, etc. Moreover, two halfway houses, each with ten places, were opened. An independent enforcement authority, the Prison and Probation Service in Greenland, was only established in At the change of the century, branches and local offices had been established in about half the judicial districts. There are also a minor number of contact persons in towns having no Prison and Probation Service representation, and a number of private supervisors. A civil servant committee appointed by the Danish Government and the Home Rule Government recommended the following in its report from 1990: strengthening of the supervision activities of the Prison and Probation Service with employees in more towns; establishment of a closed prison in Greenland to minimise transfer to the Herstedvester Institution for safe custody; unchanged prison capacity, which was (and still is) twice as large in relation to the population as the then highest-ranking country in the Council of Europe s 1988 survey and about three times as large as in Denmark; a special form of imprisonment for inmates convicted of offences against the person without any possibility of working outside the prison; and change/improvement of the treatment work in the prisons Clientele. The trend in clientele demonstrates the tasks of the Prison and Probation Service. The annual average number of clients falling within the responsibility of the Prison and Probation Service rose from 224 in to 337 in , a rise of 50 per cent. During the same period recorded crime rose by 44 per cent. During the period the number dropped by 19 per cent to 273. The drop corresponds to a decline in recorded crime, but so that the decline in recorded crime started about five years before the decline in clientele started. In 2001 the number of clients was 253. Moreover, there has been a marked change in the distribution between supervision clients and custodial clients. Before the 1978 amendment of the Penal Code, the proportion of custodial

89 87 clients (including persons incarcerated in prisons and psychiatric hospitals in Denmark) was about 18 per cent or less than one-fifth of all clients, while the proportion had risen to 35 per cent or about one-third of clients at the end of the period. In 1999 the proportion of custodial clients was even 45 per cent, which was the highest proportion for any single year. In 2001 the proportion had dropped to 38 per cent. Part of the explanation of recent years growth in the proportion of custodial clients is the general decline in crime experienced since the mid-1980s, while the types of crime most frequently triggering prison sentences crimes of violence and sexual and drug offences have increased during the same period. By contrast, the number of supervision sentences has declined corresponding to the general decline in crime. However, at the end of 2001, a major rise in the average number of supervisees under the Prison and Probation Service was seen again (from 106 in 1999 to 144 in 2001). To illustrate the (insufficient) geographical coverage of the Prison and Probation Service, it should be noted that every fourth supervision sentence is enforced in municipalities without any branch or office. The number of supervision clients is expected to rise as the Prison and Probation Service expands geographically Current organisation of enforcement authorities. The senior management of the Prison and Probation Service reports to the Ministry of Justice, the Department of Prisons and Probation, which handles administration of the grants for construction, salaries and general operations. Local management is exercised by a Prison and Probation Service Board whose statutory tasks are to consider general matters concerning the Prison and Probation Service in Greenland and to decide certain specific cases, especially release on parole, stationing and reimprisonment, etc. In practice, the Board only functions as a decision-making authority with the Department of Prisons and Probation as the appeal instance (about one appeal per year). The halfway houses, supervision activities and remaining probation work, including for inmates in prisons and detentions, are the responsibility of the Prison and Probation Service Manager. To carry out the tasks, about 30 bilingual employees (totalling 27 man-years) were employed at the end of the century, including 18 probation officers and eight teaching assistants. The rest are mainly administrative staff. The Chief Constable is still in charge of the prisons. As head of prisons, the Chief Constable acts by the authority of and is accountable to the Department of Prisons and Probation. The three prisons with 74 places have a total of 40 employees. They are managed by Danish-trained prison officers, but the security force is otherwise local bilingual employees who have received some training. Their tasks are mainly to keep security and order. The Chief Constable is also the head of police detentions. In this respect he is accountable to the central administration of the Ministry of Justice as to both contents and finances. The Greenlanders held in safe custody in the Herstedvester Institution are administered by this institution, which reports to the Department of Prisons and Probation. This applies both to the

90 88 framework and the contents of the incarceration, other than questions of variation of sanction, which are determined by the district court. There are good cooperative relations with the remaining judicial system and other authorities. However, in many fields the cooperation is unstructured and of a varying nature, both centrally and locally Criticism. The main points of criticism aimed at the current enforcement system are: supervision of and treatment conditions for probationers and parolees are not effectively enforced, so that the population sees the supervision activities as lacking in credibility; the prison system is too open so that rapists and other perpetrators of aggravated violence are seen in the streets right after being incarcerated in the prisons; the fine sanction is inefficient because fines are rarely paid; proportionately too many fines are used, too few supervision sanctions and too many custodial sanctions; persons sentenced to safe custody are sent to Denmark for an indeterminate period; and the treatment options in Greenland for mentally ill criminals are inadequate Studies. To have an illustration of the criticism raised, the Commission requested Helene Brockmann to carry out some studies of offenders and employees perception of the sanctions of imprisonment, supervision and stay in a halfway house and of criminal recidivism. Moreover, a special working group with relevant members from labour market organisations has made a recommendation on the introduction of community service as a new sanction in Greenland. 3. Commission proposals on organisation and structure 3.1. Deliberations of principles. The historical development and the declared intentions behind this development compared with current tasks shows that there is limited real possibility of the Prison and Probation Service at its current level being able to handle its tasks. Various causes can be pointed out. The rather comprehensive scientific research into Greenland s judicial system and its development seems largely to have concentrated on the conditions and functions of the administration of justice and to some extent on the legal wording of the sanction system, while to a lesser extent it has concerned the real conditions for enforcement of the sanction system of the Penal Code as intended from the start: As a sanction system without deprivation of liberty, but with quite coercive and supportive sanctions for the purpose of crime prevention/rehabilitation. In addition, the legislation governing the judicial authorities police, courts, enforcement was imbalanced from the start. Almost 25 years had to pass from the Penal Code was adopted until rules governing an enforcement authority were in place with the 1978 Act and then only the central organisation, while no thought was given to the importance of a local, efficiently structured enforcement authority. The historical studies show that politicians and all others have had the best of intentions of equipping the Prison and Probation Service with the necessary resources to make the supervision activities effective, but develop-

91 89 ments turned out differently (until the early 1990s). The quite unforeseen extent of the use of fines imposed as by tariff must be assumed to be one of the consequences of this fact. The Commission also believes that the relatively very high number of prison sentences is naturally related to the development in crime, but also to the limited possibilities so far of the Prison and Probation Service of making effective efforts. The criticism aimed for decades at the Penal Code and its sanction system in particular is ascribed to this fact, among others. Now, 50 years after the enactment of the Penal Code, the enforcement authorities and their activities must be strengthened and rationalised along with the other judicial authorities Unified management and overall structure. The present and future tasks of the Prison and Probation Service have been analysed. It is proposed to specify the obligations and thus rationalise the work of the Prison and Probation Service as the enforcement authority. Enforcement must be coordinated with a joint management, and it is proposed to prescribe rules for and otherwise administratively specify essential tasks in prisons and in the community. The Commission considers these measures necessary, but not sufficient, if enforcement of supervision sanctions is to appear as a credible alternative to imprisonment. It is therefore proposed to strengthen and geographically expand the activities of the Prison and Probation Service. As mentioned above, the authority of sanction enforcement in prisons and in the community is divided between the Chief Constable and the Prison and Probation Service Manager. But there have always been and still remain major common tasks and thus cooperation between the two fields. The Commission therefore proposes to strengthen this connection by setting up a unified Prison and Probation Service with joint management so that tasks and resources can be coordinated and prioritised quickly and efficiently, and local developments in various parts of the country can be taken into account. The Management of the Prison and Probation Service will take over day-to-day operation of prisons, local offices and halfway houses. The Management will also take over the present tasks of the Prison and Probation Service with the pre-trial work, including pre-sentence reports, enforcement of supervision sentences and other supervision sanctions, including stays in halfway houses, family care and educational institutions, and in future also community service sentences and (initiatives for) special sanctions for young people. Enforcement of sanctions in prisons and other custodial sanctions, including safe custody sentences, detention of fine defaulters and in collaboration with the Chief Constable day-to-day responsibility for handling detainees, etc., will be taken over from the Chief Constable. It is assumed that the heads of the local institutions (local offices, halfway houses, prisons) will still have managerial powers, including authority to make decisions in specific cases. It is presumed that the Management of the Prison and Probation Service will act as an appeal instance in that respect. As a novelty, it is proposed to terminate the right of appeal to the Department of Prisons and Probation so that the Management of the Prison and Probation Service will thus make the final administrative decision in specific cases of appeal.

92 90 However, some decisions are of such coercive nature that such decision should be made by the Management of the Prison and Probation Service, according to the proposal, and in special cases with particularly easy access to judicial review. It is proposed to abolish the Prison and Probation Service Board as a consequence of the structural changes. The planned rationalisation of enforcement presupposes close collaboration between the judicial authorities. In view of this it is proposed to establish a Central Liaison Committee for the Judicial System concerning Criminal Matters [Centralt Kontaktudvalg for Retsvæsenet vedrørende Kriminalsager] with representatives of all judicial authorities. The purpose is mutual briefing on and discussion of subjects of interest to the overall judicial system. Locally, it is presumed that local liaison committees [lokale kontaktudvalg] will be set up between the district judge, the local head of the police station and a representative of the local probation office of the judicial district, particularly with a view to flexible cooperation on rapid reactions at evasion of supervision and breach of conditions of treatment, etc. Rehabilitation and treatment initiatives are included in each of the sanctions proposed by the Commission. Such accomplishment presupposes close cooperation with social and health services and other public and private organisations, etc., with treatment offers for alcohol and drug abuse, for example. To structure and strengthen this cooperation, it is proposed to establish a Central Coordination Committee concerning the Prison and Probation Service [Centralt Koordinationsudvalg vedrørende Kriminalforsorgen] with representatives from the Management of the Prison and Probation Service, the Department of Social Services, the Department of Health [Sundhedsdirektoratet] and possibly the Association of Local Authorities in Greenland. The purpose is to discuss matters of common interest, particularly coordination of the cooperation between relevant local authorities, which it is proposed to organise in each municipality through a local coordination committee [lokalt koordinationsudvalg]. Another task will be to prepare general plans for special groups of clients, such as persons sentenced to community service and mentally ill criminals, and ensure local implementation of the plans. 4. Enforcement of supervision sanctions 4.1. Current law. Under current law, supervision sanctions comprise sentences of probation, supervision of parolees, supervision of mentally ill offenders sentenced to treatment, also upon discharge from hospital, supervision of released offenders sentenced to safe custody (at present from Denmark), and supervision of offenders placed in halfway houses, institutions or family care. Other tasks are pre-sentencing work, handling of the probation obligations towards prison inmates and crime prevention work. As mentioned above, the work is performed by the staff at the branches and offices of the Prison and Probation Service located in about half of the 18 municipalities. In most other municipalities, the Prison and Probation Service is represented by a contact person Deliberations. The supervision sanctions never at any time worked efficiently as intended, mainly due to lack of professionalisation and inadequate geographical expansion. If the supervision sanctions are to function efficiently, there must be persons in the offender s

93 91 local environment who can assume the supervision obligation, who can intervene when conditions are breached and who can also provide support at need. If an otherwise expedient supervision sanction cannot be effected, the court consequently has to impose another, less expedient sanction. The most conspicuous problem is that, to a very considerable extent, lack of representation in towns and settlements makes the work of the Prison and Probation Service difficult and in some cases even impossible Proposal. The Commission finds it necessary that the Prison and Probation Service should be represented in all judicial districts, in principle by trained staff, but otherwise by use of contact persons, private supervisors and pre-sentence reporters. And structured so that these private individuals get adequate support from the professionals. This expansion is emphasised as a prerequisite for the accomplishment of the rest of the Commission proposals. The demands to be made of an efficient supervisory authority, the tasks to be carried out and the duties of the supervised client should be prescribed by the Penal Code, according to the proposal. They include: Guidance to the sentenced person on the contents of the supervision sanction. Initiation of the supervision at the earliest possible date, if possible as voluntary supervision. Determination of the contact frequency between the offender and the supervisory authority. Preparation of an action plan for the supervision and possibly the time thereafter. Effective control of the offender s observance of the conditions fixed. Rapid intervention by the police and the court at breach of the conditions. Guidance and assistance for resolution of social and personal problems. Close and good cooperation with other authorities, both judicial and non-judicial ones. To strengthen the ability of the court to choose the most expedient sanction, it is proposed to intensify the pre-trial efforts of the Prison and Probation Service. The efforts concerned are: preparation of a proper pre-sentence report when coercive measures may be involved (supervision, prison); certainty in that connection that a potential sanction is well-prepared before the case is heard by the court; and active canvassing efforts to find and conclude provisional agreements with suitable educational institutions, care families, etc. It has been particularly difficult to find suitable supervisors and to carry out supervision of clients released on parole after having served a prison sentence. It is therefore recommended to provide resources to strengthen performance of the probation tasks in the prisons and rationalise the supervision of parolees. The potential for a beneficial influence of the prison according to the Commission proposal must be utilised, and housing and work or other maintenance must be clarified. This need will become particularly urgent when semi-closed and

94 92 closed facilities are introduced. Moreover, it is proposed that the probation officers of the relevant prison cooperate closely with the future local probation branch or office, and that any private supervisor, care family, etc., must be involved in the planning. As known from experience, supervision of parolees must be very close. The consequence is more travel activities for the purpose of visiting towns and settlements where parolees are subject to supervision by the Prison and Probation Service contact person on site or by a private supervisor New or amended supervision sanctions. Enforcement of community service sentences: According to the Commission proposal, the Prison and Probation Service must provide the necessary workplaces and, by agreement with each individual one, determine the conditions for the participation of the workplace in the scheme, including ensuring an understanding of the importance of prompt notification of the Prison and Probation Service (the supervisor) of all absences and similar failures in connection with performance of the work obligation. It must be ensured through approval of potential workplaces for community service by the National Labour Council [Landsarbejdsrådet] that community service will not take up jobs that would otherwise be available to the ordinary labour market. Enforcement of special sanctions for young offenders: Already in connection with preparation of a pre-sentence report for young offenders, the Prison and Probation Service must be extra aware of the possibilities implied by the statutory cooperation, as proposed by the Commission, between the social authorities, the police and the Prison and Probation Service via a sentence of special sanction. As now, the social authorities are responsible for implementation, but the Prison and Probation Service should take the initiative and then be the prime mover in keeping up the cooperation. The purpose of the binding partnership according to the proposal is to give local authorities a flexible tool for finding those particular initiatives for the young person which are deemed suitable in the specific case and which it is feasible to implement locally. Enforcement of sanctions for mentally ill criminals: The Commission proposal on the duties of the Prison and Probation Service to this clientele involves intensive contact with the offender, also to check the offender s observance of the special treatment condition. The proposal presupposes that both the Prison and Probation Service and the health service have resources available for this cooperation also for prior planning of the sanction and particularly for guidance and rapid intervention in acute situations. The Prison and Probation Service is also presupposed to employ psychological and psychiatric expertise. Supervision of offenders sentenced to safe custody: It must be assumed that the cooperation on the resource-intensive phase of preparing for the inmate s return to the local community will be facilitated somewhat after implementation of the proposal to place offenders sentenced to safe custody in a prison in Greenland. However, it must be emphasised that the nature and scope of the special probation obligations to this clientele, who are placed for an indeterminate period as being dangerous to other persons, do not otherwise change at this implementation.

95 93 5. Enforcement of prison sentences 5.1. Current law. The current rules comprise all forms of imprisonment, that is, prison sentences for a fixed period of up to ten years, sentences for indeterminate periods (safe custody), placement as preparation of a sentence of probation, and imprisonment of fine defaulters. Inmates are placed in the three open prisons with 74 places, to some extent in police detentions and at stationing from a prison in the halfway houses of the Prison and Probation Service. Placement in the Herstedvester Institution in Denmark must be added to these Proposal on prison structure. It is a special feature of the prisons in Greenland that imprisonment cuts off the inmate as little as possible from the local community, and therefore occupation and leisure-time activities take place outside the prison, if possible. The track record of this arrangement is good, and since violent conflicts, disciplinary measures or other measures occur rather rarely compared with prisons in other countries, it is proposed that inmates should in principle still be imprisoned in open prisons. It is proposed to exempt the following offender categories from this rule: Offenders who have committed aggravated offences against the person can be placed under a semi-closed regime for a period without the possibility of leaving the prison for work, etc., in consideration of the victim and the local community. Such a semi-closed regime will be provided in the otherwise open prisons. Offenders who do not respect the restrictions of open and semi-open regimes can be placed in a closed disciplinary unit to be opened in Nuuk Prison. Offenders sentenced to safe custody and so far sent to the Herstedvester Institution in Denmark will be placed in a closed safe custody unit attached to Nuuk Prison so that psychiatric assistance, etc., can be provided from the psychiatric unit at Queen Ingrid s Hospital in Nuuk. Establishment of two closed units in Nuuk Prison presupposes the establishment of occupational facilities and leisure-time facilities as these inmates will only be able to leave the prison in special cases. All the existing three prisons are located on the west coast. In connection with transfer of the safe custody clientele from Denmark, it is proposed to build a new small prison on the east coast of Greenland, corresponding in size and occupancy to the two small prisons. The capacity will then remain unchanged. It is recommended to expand the possibility of stationing inmates in halfway houses, to maintain the possibility of short-term service in detentions, and to resume placement in family care, etc Contents of incarceration. So far, a stay in prison has mainly consisted in surveillance of the inmates in their leisure-time and at night. Various measures are proposed for a more suitable utilisation of the incarceration period in future, such as

96 94 providing occupational facilities in the prisons, particularly for inmates in the closed unit and under a semi-closed regime; making training and education equal work; introducing self-management and other leisure-time offers; introducing treatment options in the form of cognitive skills programmes, etc.; and strengthening probation efforts, also with the aim of crime prevention. The existing rules on prison stays have been revised in recent years in view of international recommendations on the treatment of inmates. The proposed new rules emphasise both community security against crime and procedural safeguards and treatment possibilities for sentenced offenders. Chapter XVI, section 6, of the Report gives a comprehensive review of the current rules on prison stays and proposes rules on the rights and duties of inmates during enforcement. As so far, the point of departure is that the inmate can exercise his or her usual civic rights to the extent that the deprivation of liberty does not in itself bar him or her from doing so. It is proposed to prescribe that, during enforcement of a sentence, no restrictions may be imposed upon a person other than such as are prescribed by law or are a consequence of the deprivation of liberty itself. The restrictions that may be involved according to the Bill of the Commission besides the regard for security and order to maintain the deprivation of liberty are partly the regard for a special risk of new serious crime, partly regard for the public s sense of justice. The proposed rules on the right to the application of force and imposition of disciplinary measures and the rules for other coercive decisions are based on the rules set out in criminal justice to safeguard due process for the individual concerned. Moreover, they provide for particularly easy access to judicial review of certain administrative decisions. The decisions concerned are those that imply (further) deprivation of liberty, such as refusal of release on parole, as well as certain decisions normally made by courts, but made administratively during the deprivation of liberty, such as decisions on confiscation and forfeiture. 6. Staff and training consequences The Management of the Prison and Probation Service will have to employ a manager who must have a law degree, and four to six employees with institutional and other sociological expertise for management and development tasks as well as skills for handling financial, staff and other managerial tasks. Probation offices and halfway houses will need to employ further probation officers corresponding to six man-years so that the workforce then corresponds to 33 man-years. To this figure must be added a number of contact persons and private supervisors. It is recommended that the Prison and Probation Service staff in probation offices and halfway houses should be enabled to solve future tasks via targeted further training and management training.

97 95 The expansion of Greenland s prison system with closed units, occupational facilities and a new prison at Tasiilaq will require new employees corresponding to further man-years, whereupon staff at Greenland s prisons will total man-years. It is proposed that the basic training of prison officers be expanded and that prison officers and teaching assistants at the halfway houses participate in relevant further training courses to improve their skills in occupying the inmates. In addition it is recommended that the prison staff study more specific subjects in order to obtain skills in conversational techniques, cognitive skills programmes and treatment of abuse of various kinds. 7. Capacity development after 2001 The Commission proposal on the prison expansion in Greenland, including introduction of occupational facilities in the prisons, and the derived staff and financial consequences are based on the prison system as it was at the end of However, the continued pressure on prisons and detentions and increasing waiting periods for serving made it necessary in 2002 both to convert the halfway house in Ilulissat into a prison and to include an annex associated with it as a temporary capacity increase. There are also considerations of temporarily including premises in the existing prisons for further occupancy. This development which, as mentioned above, is partly of a temporary nature, does not change the Commission s recommendations concerning expansion of the Prison and Probation Service in Greenland. As to the occupational expansion which has already been started, the Department of Prisons and Probation has stated that this expansion will not be slowed down by the most recent initiatives.

98 96 Chapter XVII Treatment of remand prisoners and other detainees 1. Detentions A defendant may be arrested and possibly detained (remanded in custody) before the trial. Custody is effected in local detentions, which are also used for other detainees (drunks) and as concerns the best detentions for short-term sentence enforcement. Detainees may also be placed in a special unit in Nuuk Prison and exceptionally in the prisons at Aasiaat and Qaqortoq. The detentions are situated in the 17 police districts and have a total of 51 detention cells. Eight detentions were built in the early 1990s and are equipped with television monitoring, calling/intercommunication systems and fire alarms. The other detentions were similarly equipped at the same time. Moreover, there are detentions in six minor towns and settlements without permanent police staff. They are not used very often. No electronic monitoring has been installed. A study in 1998 of the need for detentions in settlements showed that people deprived of their liberty are often placed under inexpedient conditions and in premises not suited for the purpose. Because of the very small need, there seemed to be no immediate reason to build actual detention premises in the settlements, and the police has therefore cooperated with the local authorities to find out whether existing suitable premises in the settlements could be used for deprivation of liberty. The Commission accordingly found no need to build actual detention premises in the settlements, but recommends that deprivation of liberty in the settlements be limited as much as possible, and that drunks be placed in their own homes instead, possibly attended by the local bailiff. If it is impossible to avoid deprivation of liberty, it is recommended that persons deprived of their liberty be placed in already existing detentions or premises. 2. Attendance on and treatment of detainees The common provisions on supervision, etc., for all detainees are included in the Chief Constable s orders on local prisons and detentions. These orders include provisions on order and security, on staff tasks and on the rights and duties of detainees. The provisions include rules on searches, locking up of cells and frequency of attendance, measures in case of illness and guidelines for complaints. The Commission has no comments to the common rules. Notable rules specifically aimed at drunks are particularly frequent attendances, that drunks should be released from the detention when the basis of the arrest has ceased to exist, and that the time of release must be recorded in the record of arrests. The rules applicable to prison inmates also apply to sentenced offenders placed in detentions, but with the necessary modifications following from differences in building facilities and staff, etc. The Commission proposes no amendments thereof.

99 97 Concerning detainees, particular note should be taken of the provisions of the Administration of Justice Act (and the Enforcement Order), according to which the rules for prison inmates also apply to detainees to the extent regard for ensuring the purpose of the detention or regard for maintaining order and security renders it necessary and it is compatible with the purpose of the detention. The Commission recommends the Management of the Prison and Probation Service to cooperate with the Chief Constable on the preparation of a special set of rules for treatment of detainees. Such rules should be based on the Commission s proposed rules for treatment of persons sentenced to imprisonment. Most of these rules can be applied immediately to detainees, while special rules should be prepared on the right to visits, correspondence by letter, leaves and occupation. 3. Probation work According to an express provision to that effect in the Penal Code, the probation offices of the Prison and Probation Service handle the welfare and probation work with persons incarcerated in prisons. The task is assumed in practice also to include detainees and sentenced offenders placed in the detention. By agreement with the Chief Constable, the local police must immediately notify the Prison and Probation Service of arrests and particularly detainees. The Commission recommends that the Prison and Probation Service should be ordered, under the authority of the Administration of Justice Act, to prepare detailed rules on the probation assistance to be given to detainees to limit the employment, social and personal drawbacks following from the detention. The contact should be made as soon as possible and within one week of the arrest. Such scheme had already been initiated when the Report was submitted. The task comprises both arrangements for the future sanction and assistance for relief of personal and social problems.

100 98 POLICE (Chapter XVIII of the Report) Chapter XVIII Police activities 1. Introduction The Greenlandic police is a unified police, meaning that it carries out both the tasks incumbent on uniform police and investigation and prosecutions. Most staff are Greenlanders. This also applies to the chiefs of station of the 17 subordinate local districts of the police district of Greenland. So far, the Chief Constable has been Danish (with one exception). The police district is subordinate to the Danish Ministry of Justice, its policing activities are subordinate to the Danish National Commissioner of Police, and prosecutions come under the Danish Director of Public Prosecutions [Rigsadvokaten]. The police handles several tasks which are not traditional police tasks, including a rescue service and civil authority functions. Prison sentences are enforced with accountability to the Department of Prisons and Probation. The Commission has prepared a description of police developments from its establishment in 1951 until appointment of the Commission in The current organisation and activities are assessed on the basis of this description and a review of the current conditions of the police, and proposals for adjustments are made. 2. Current arrangement 2.1. Retrospective look. Based on the 1951 Administration of Justice Act for Greenland, a special Greenlandic police force was established, a Chief Constable managing five local districts (in western Greenland) manned by five posted Danish police officers or sergeants (increased to seven after a few years). The existing local bailiffs, whom the then Governor had assigned to carry out municipal tasks, were charged under the Administration of Justice Act with assisting the Danish police sergeants with policing tasks. Moreover, each police sergeant was assisted by a Danish-speaking Greenlander who was both to act as interpreter and be taught and instructed by the police sergeants with a view to employment and function as a special police constable. From the very start, training and education of Greenlandic police staff was thus in focus, an objective which has currently resulted in a Greenlandic police force trained on the same level as the corresponding Danish police force. The first time a police officer trained in Greenland was appointed to a managerial position with the Chief Constable s Office was in The Chief Constable and the lawyers of the Chief Constable s Office are still Danish. According to the Administration of Justice Act, the primary tasks of the police were maintenance of peace and order, investigation and prosecutions as well as enforcement of judgments of all kinds. Enforcement of civil judgments enforcement of pecuniary claims has become a strain on the police with industrialisation and the development of modern society in general.

101 99 Prosecutions, collection of fines and enforcement of prison sentences remain police tasks, while enforcement of other Penal Code sanctions was taken over by the Prison and Probation Service of Greenland in Due to the geographical conditions, searches and rescue actions on land and at sea are essential tasks that the police had to carry out and still have to. Besides conventional administrative police tasks, such as issuing passports, driving licences and licences to sell spirits, the police mainly because of lack of alternative options was ordered to carry out a large number of public authority tasks and administrative tasks, most of which are unknown in Danish police work. Such tasks included consideration of municipal bylaws, decisions of scheduling of land and buildings, fishing issues and port issues, inspection of vessels and vehicles as well as fisheries inspection. Moreover, family law issues requiring decision by a public authority concerning paternity, mediation and negotiation of conditions in marital cases and adoption cases were referred to the police. Some of the tasks mentioned but not all of them have been transferred to more relevant authorities as the Home Rule Government has been expanded Organisation. Organisationally, the police was subordinate to the Ministry of Greenland [Ministeriet for Grønland] and the Governor [landshøvdingen] until Since then, Greenland an independent police district alongside the other police districts of the realm has been subordinate to the Minister for Justice who, as mentioned above, exercises his or her authority through the National Commissioner of Police and the Director of Public Prosecutions. However, compared with the other police districts, Greenland has a special position in several fields in relation to the Ministry of Justice, the National Commissioner of Police and the Director of Public Prosecutions. In the legislative field, the Chief Constable assists the Ministry of Justice in preparing new Danish statutes with effect for Greenland (such as the Greenlandic Traffic Code and the Greenlandic Firearms Act) and receives legislative initiatives from the Home Rule Government for consultation if they fall within the field of responsibility of the Ministry of Justice. There are frequent contacts between the Ministry of Justice, the National Commissioner of Police and the Chief Constable s Office on resources, staff, salaries and training. The Serious Crime Squad and the forensic technical department of the National Commissioner of Police provide assistance in specific cases, and the National Commissioner s central register and analytical units provide recorded data for investigation purposes. Training and further education are given in cooperation with the Danish Police Academy [Politiskolen], and technological development in cooperation with the data department of the National Commissioner of Police.

102 100 As prosecutor, the police is directly subordinate to the Director of Public Prosecutions (and the Minister for Justice) under the Administration of Justice Act. The Director of Public Prosecutions regularly receives the Chief Constable s prosecuting instructions and monitors cases submitted from the first briefing until the end. Like other Danish administrative authorities, the police in Greenland is subject to control by the Parliamentary Ombudsman [Folketingets Ombudsmand]. The Ombudsman has inspected prisons and detentions. Following this, rules concerning enforcement of prison sentences have been reviewed and rationalised. The Chief Constable s Office, located in Nuuk, is headed by a Chief Constable and has a Deputy Chief Constable as the second-in-command, two Deputy Chief Prosecutors and two Police Prosecutors, one Chief Superintendent with a police secretariat, and one office manager with an office division. The lawyers are in charge of prosecutions and the legal casework of the district. They appear as prosecutors before the High Court of Greenland. They also provide guidance to the local districts on operative and administrative policing, criminal proceedings and appearing before the district court. The lawyers examine criminal cases that must be submitted under special rules before institution of criminal proceedings. The Chief Superintendent with his or her police secretariat manages the policing operations of the police force. The Chief Superintendent does so through head of station notices supplementing the Chief Constable s orders. The local districts share boundaries with 16 of the 18 municipalities of Greenland. In addition Kangerlussuaq has the status of an independent local district. Each of the 17 local districts has a police station, detentions, vehicles and means of communication. The police is decentralised with an independent head of station and is at the same time an extended community police integrated with the local population and with visible activities. The police staff of the local districts varies from a single police officer in small local districts to many police officers in large local districts, Nuuk being the largest local district with 25 police officers, two local bailiffs and one assistant local bailiff (figures from 2000). Only Nuuk local district has roundthe-clock service. The other local districts have an officer on call outside ordinary business hours. Four police cutters serve the settlements. Outside the police stations of the local districts, detentions and actual police premises only exist in few places. The local bailiffs solve their tasks from their homes, to which drunks and troublemakers are often brought and suspects are detained until the local district police takes over the case. The study of police working conditions in Greenland (Kreutzmann and Jensen) shows that the local bailiffs basically have no aids at their disposal except handcuffs, a truncheon and a cap. Several improvements have been made later concerning the local bailiffs working conditions.

103 Staff. Police staff is stated as at the end of The six lawyers of the Chief Constable s Office are employed by the Ministry of Justice. They are typically employed with the Office for a two-to-five-year period. The administrative staff of the police district comprises one Danish office manager and 28 clerks, mainly Greenlanders. Due to difficulties in filling vacancies, one or two clerks have been posted from Denmark. The aggregate police force numbers a total of 227 persons, comprising 121 police officers, including 22 posted Danish police officers, 47 auxiliary officers and 59 local bailiffs and assistant local bailiffs. Since 1998, the fixed standard requirement is 115 trained police officers. Grants still comprise 24 posted police officers and recruitment of about 10 candidates per year for the Police Academy. So far it has been difficult both to recruit new young police academy candidates and to retain police officers already appointed, mainly due to competition from other professions. Therefore it has been impossible to increase the number of Greenlandic police officers in recent years. The posted Danish police officers serve for a two-to-five-year period in Greenland. Their role has changed materially from originally constituting the actual police force to currently supplementing the permanent Greenlandic police force. They are usually not part of management and cannot make any career or get further education while in Greenland unless they are transferred to the Greenlandic police force. The auxiliary police officers are hired for a specific period and carry out police work some evenings a week as a secondary job in connection with another main profession. Their primary task is to assist in maintaining peace and order under the management and responsibility of one of the permanent police officers. The existence of local bailiffs has been necessitated by the fact that the population still lives dispersed in a very large number of towns and settlements at such a distance from the police station of the local district that independent police service is required. The 59 local bailiffs and assistant local bailiffs are recruited locally upon recommendation by the settlement council. Their primary task is to ensure peace and order and to monitor observance of the laws. Guidelines for the activities of local bailiffs are laid down in instructions prepared by the Chief Constable. Recently, regional local bailiff training courses have been planned, and the local bailiffs have been equipped with further uniform parts which show that they perform police tasks. The ship crews consist of four cutter masters and 17 cutter crew. The cutter masters, who must be trained home-trade masters, are employed by the Chief Constable. With new steel cutters, the oldest one acquired in 1989, the goal is to service most of the local districts of Greenland.

104 Police tasks. The tasks emphasised here are those that are special to the Greenlandic police. The crime prevention and security generating activities are carried out especially by police presence among the population, by patrolling and through stand-by arrangements adapted to handle any crime that may arise. Since the towns are fairly small and there is police in basically all towns, the police is very visible and is rather in the nature of extended community police. In terms of preparedness, the Nuuk police station is open round the clock. In the other local districts, the station is manned between 8:00 am and 4:00 pm, and the rest of the day is covered by a police officer on call from his or her home. A telephone call to the local police is switched to the officer on call. The Chief Constable s Office has a lawyer or a senior police officer on duty 24 hours a day. Targeted tasks include the police drugs squad which carries out drug investigation across Greenland and assists the other local districts with investigation in major drug cases. In the traffic, the police carries out drunken driving checks and speeding checks. The police also has to try to prevent crime from being committed at all. This crime prevention task is handled in cooperation with other local authorities also entrusted with the task of making preventive efforts. The police also carries out search and rescue operations, planning and implementing actions in emergency situations and major police operations during state visits and the like. Responsibility for the search and rescue service in Greenland is divided between three parties: the Greenland Command [Grønlands Kommando] at Kangilinnguit/Grønnedal is responsible for the sea rescue service for distressed ships, the Air Rescue Centre [Flyredningscentralen] of Kangerlussuaq is responsible for the air rescue service for distressed aircraft, and the Chief Constable of Greenland is responsible for the land rescue service, that is, search and rescue actions everywhere on land and in coastal waters. The police cutters are used for the search actions in case of search and rescue in coastal waters. Aircraft are chartered from Air Greenland or Air Alpha for use in searches over large areas. The naval helicopter or fixedwinged aircraft from Kangerlussuaq and Narsassuaq are used when possible. Finally, local fishing vessels and tour vessels, snow scooters and dog sleighs are chartered. Police tasks concerning prosecution of crime comprise reporting and investigation of offences, institution of criminal proceedings and conduct of cases before the courts. The local district manages the vast majority of its police tasks itself. If a criminal act is committed in a local district settlement, police staff is sent to the settlement to take over the case from the local bailiff. The initial and urgent steps such as arrest and securing the place of the crime are carried out by the local bailiff according to the guidelines for investigation and prosecution laid down in the Chief Constable s prosecuting instructions. Random reviews of the criminal cases of the district at annual inspections ensure that legal formalities are observed. The head of station is authorised to issue fixed-penalty notices or indictments in property offence cases if the unlawful (intended) gain does not exceed DKK 5,000, and in cases of violence if no damage has been done or the damage can be characterised as minor, and it is not otherwise a repeated offence that might involve custodial sanctions. The head of station may make decisions under certain legislation other than the Penal Code, such as the Traffic Code, bylaws on

105 103 dogs and police bylaws. The police officers of the local district appear as police prosecutors in court, except in the High Court. Police officers are trained in prosecutor tasks, both during their basic training and by further education. Enforcement of sanctions still to some extent rests upon the police. As mentioned above, the Commission proposes that the management of the prisons of the Prison and Probation Service be taken over by the Management of the Prison and Probation Service, which will then be in charge of enforcement of all sanctions except collection of fines. It will remain a workintensive task for the police to handle initiation and subsequent variations of treatment and committal sentences for mentally ill criminals. Under the Administration of Justice Act, the enforcement authority is assigned to the police and the local bailiffs so that local bailiffs enforce public claims while the police enforces civil claims and carries out possession and repossession proceedings. In addition, the police collects fines, as mentioned above. Other police tasks are administration of the legislation on public collections, on the import and export, storage and use of firearms (particularly of interest to the many expeditions across the inland ice cap), issuing of passports, and the legislation on driving licences and driving tests. Moreover, the police administers permits for public arrangements, etc., pursuant to the police bylaws adopted by the individual local council. Other tasks are vehicle inspection, updates of and inquiries to central registers and the administration of lost and found property. As mentioned above, the police also has a number of civil law tasks. They are mainly cases of declarations of legal incompetence and guardianship, paternity cases, marital cases and administration of compensation fixed by the Compensation Board for Victims of Crime [Erstatningsnævnet til ofre for forbrydelser]. 3. Studies 3.1. Study of the population s attitude to the police. This study was carried out by Henrik Skydsbjerg, who prepared the report Population and Police on the basis of the study results. The Commission published the report in November A representative selection of Greenland s population a couple of thousand citizens have answered a number of questions on their most recent contact with the police and on how they, as citizens, experienced the way the police handled the situation. In the study, 81 per cent of the citizens indicate satisfaction with the general police effort. There are, however, fluctuations in individual fields which the study has investigated in more detail. When citizens themselves contact the police, they are most satisfied with the service field with 94 per cent, but victims of crime were not so satisfied, only 65 per cent being satisfied with the treatment accorded them by the police. In situations where the police contacts the citizen, enforcement proceedings have the highest satisfaction rate with 87 per cent, while only 67 per cent are satisfied with police

106 104 handling of arrests. 21 per cent of those arrested claimed to have been exposed to police violence. About crime and security in their daily lives, 83 per cent indicated that they never or almost never fear violence in their homes, and 77 percent that they never or almost never fear violence outside their homes. In the cases where the citizen asked for prompt assistance, 74 percent were satisfied. Concerning the ranking of tasks by the police, slightly more than half of the interviewees thought that the police should spend more time on information and teaching. Slightly less than half thought that hashish cases should be upgraded, but almost the same number thought that the police should spend more time on taking care of people who had been exposed to crime Study of police working conditions. Claus Stensgård Jensen, economist, and Gladys Kreutzmann, social worker, carried out the study and prepared the report on Police Working Conditions, which was published in October The study comprises police officers, auxiliary police officers, local bailiffs and resigned policemen. The study shows that a police employee is happy with his or her workplace and has good relations with colleagues. The work is perceived as independent and varied. Management is perceived as both loyal and controlling. But more courses and further education are wanted, and particularly the local bailiffs want better working premises, radios and computer equipment, etc. Heavy workloads, including uncontrollable working hours and many violent events occur evenly among all types of local districts, large and small. In some fields there is higher job satisfaction in medium-size local districts (from 5 to 12 officers). As reasons for (considerations of) leaving the service, police officers state that the salary is too low, that working hours are too poor, and that the possibilities of further training are unsatisfactory. Also that there are many violent events that may affect their private lives. In this context they point to an uncovered need for assistance and support in relation to such events. The study discloses the desire that the police should only perform police tasks and that civil work fields should be transferred to other authorities. 4. Police complaints boards Complaints of police activities were not subject to any special rules until 1 January For use in the Commission s deliberations on the processing of complaints and criminal cases concerning police staff, the Chief Constable s Office prepared a list of all complaints of police considered in writing between 1992 and One-fourth of the complainants (in 15 out of 60 cases) in had succeeded according to decisions by the Chief Constable, the Director of Public Prosecutions or the Ministry of Justice (the ordinary right of appeal). In 1997 and 1998 the police considered a total of 14 complaints of police conduct, 43 appeals of police decisions, and 17 reports of criminal acts committed by police while in service.

107 105 On one hand, the Commission s deliberations on a new and up-to-date complaints system were based on the current Danish complaints system. On the other hand, the Commission desired to keep a unified and simple system that also had to be based on the options available in Greenland, while participants had to have the requisite knowledge of Greenlandic conditions. With these requirements in mind, involvement of regional public prosecutors or the Director of Public Prosecutions seemed both remote and inadequate. Due to the special structure of the police district and the regular replacement of the incumbents, the Chief Constable of Greenland has a more independent position in relation to his or her police staff than chief constables in Denmark. If a Greenlandic chief constable model were combined with a police complaints board according to the Danish model, the unified system could be maintained while, to reassure the public, it would be under the supervision of an impartial complaints board. This was deemed, as a whole, to constitute a functional and credible complaints system. Against this background a Police Complaints Board for Greenland [Politiklagenævn for Grønland] has been appointed, chaired by an attorney practising law in Greenland and with two laymen as members. The members are appointed by the Ministry of Justice upon recommendation by the Council of the Bar and Law Society and the Home Rule Government of Greenland. The Board has to receive the files of both complaints of police conduct and criminal proceedings against police staff. The Board may request the Chief Constable to carry out certain further steps of examination or investigation and may indicate to the Chief Constable how, in the Board s view, the case should be processed and decided. The Board can bring disputes with the Chief Constable, including disputes on his decisions of complaints, before the Director of Public Prosecutions. Complaints can be filed both with the police and the Board. The Commission did not want a new complaints system to have to await completion of the remaining work of the Commission. The proposal was then implemented as Act No. 905 of 16 December 1998 on consideration of complaints and criminal proceedings concerning police staff in Greenland. The Act entered into force on 1 January 2000 and is followed up by annual reports from the Director of Public Prosecutions. 5. Assessment of police structure The Commission compares the current police organisation and activities with an extended community police where contact with the population is even closer than in Denmark due to the geography of the country. Police in town communities is visible and basically has good contact with citizens due to close integration in the local environment. Judging by the population s attitude to the Greenlandic police, the arrangement works well, according to Henrik Skydsbjerg s study. The population thus has a predominantly positive attitude to the police. It also appears from the study of police working conditions in Greenland that the attitude to the police structure, from an employee s point of view, is mainly positive. The most important criticism is aimed at the uncontrollable working hours of the police which is a very common phenomenon due to the division of the police force into 17 local districts.

108 106 To counter this disadvantage, the Commission has considered suggesting a merger of the police force into, for example, three regional units on the west coast and possibly one unit on the east coast. This might provide such a concentration of staff that working hours could be arranged as foreseeable shifts. However, such regionalisation is rejected. Substantial travel and out-of-station hours could be expected in connection with prosecution of crimes in the towns and settlements served by the regional units. It is considered doubtful whether such increased out-of-station hours would be attractive, and whether increased travel and posting expenses would be outweighed by savings from the merger of several local districts. Moreover, delays would arise concerning police actions and police service. The Commission finds that the current number of police transactions and Penal Code violations and a population of about 1,500 provide a basis for establishing a further independent local district in the municipality of Kangaatsiaq, which has so far been served by two local bailiffs and the police of Aasiaat. Implementation of this presupposes a police force comprising a higher number of police officers as the force cannot bear further geographical dispersion with its current number. 6. Changes proposed by the Commission In his capacity as prosecutor, the Chief Constable is directly subordinate to the Director of Public Prosecutions according to the Administration of Justice Act. There is thus no Regional Public Prosecutor [statsadvokat] between the Chief Constable and the Director of Public Prosecutions as in Denmark. The Commission finds the Greenlandic scheme satisfactory, but proposes that provisions be introduced into the Administration of Justice Act, according to which the Director of Public Prosecutions shall supervise the handling of criminal proceedings by the Chief Constable of Greenland, corresponding to the Regional Public Prosecutors supervision of the Chief Constables handling of criminal proceedings. It is also proposed to amend the current provision according to which the Chief Constable s decision to institute or refrain from instituting criminal proceedings does not bind the Director of Public Prosecutions or the Minister of Justice. It is thus proposed to introduce express rules on appeal of the Chief Constable s decisions to the Director of Public Prosecutions, whose decisions will be final, which implies that the right of appeal to the Minister for Justice is removed (the two-instance principle). To avoid difficulties in recruitment for executive lawyers positions within the police, the Ministry of Justice initiated a summer assistance scheme for lawyers, which started in the summer of To retain police staff, the Commission proposes a reduction of uncontrollable working hours and hours on call. The Commission aims at an increase of the police force, bringing it up to 125 police officers, whereby the pressure on the individual employee will be reduced and it becomes possible to establish retirement positions for employees who are no longer suited for shift duty and service on call due to illness or age. It is also recommended to improve the cur-

109 107 rent salary level which largely corresponds to the Danish level by making the Greenlandic police civil servants subject to Danish agreements by collective bargaining. This avoids several years of delay in adjusting the salaries and classification of the Greenlandic police officers. To further the working environment of the police, it is recommended that stations without such basic things as running water should be refurbished or rebuilt and that the Greenlandic police uniform should be redesigned into more practical and up-to-date clothing. It is proposed to make a targeted effort to get applicants, partly through persistent informative activities about police training, partly by focusing less on the applicants physical abilities and more on their social and professional qualifications for performing police tasks. Moreover, it is recommended that training activities generally be maintained at the current stage. The Home Rule Government and the municipalities are cooperating to coordinate and strengthen the authorities efforts in settlements. Some efforts concern improved detention premises through the use of existing facilities. It is further recommended to identify all the local bailiff s tasks, also tasks other than the functions of a local bailiff, and then to assess whether, on an overall assessment of these tasks, office facilities and possibly means of communication may be provided for the local bailiffs in several of the large settlements, perhaps within the settlement council s own administration. It is also proposed to specify all tasks so that together with the police tasks they may form the basis of an improved form of remuneration and thus higher salary. As mentioned, it is proposed to relieve the police of most enforcement proceedings and tasks of a civil law nature. It is also proposed to utilise the existing right to initiate custodial serving of unpaid fines in practice. According to the assessment of the police, five police cutters would be desirable to service towns and settlements, weather and ice permitting, and to carry out search and rescue actions in the coastal waters of Greenland. The Commission therefore recommends that endeavours be made to acquire one more police cutter, should it prove financially possible.

110 108 CONCLUDING PART (Chapters XIX-XXVI of the Report) Chapter XIX Follow-up on Commission proposals 1. Background The Commission has considered whether it is possible and desirable to carry out studies of the function of Greenland s judicial system on a continuous basis after enactment of the new legislation and changed administrative structures proposed by the Commission. As is well-known, the 1951 Administration of Justice Act and the 1954 Penal Code were drafted on the basis of studies and proposals prepared by the Greenland Commission [Grønlandskommissionen] of 1950 and the Legal Expedition [Den juridiske ekspedition] ( ). Several times, the legislation was also made the object of socio-scientific studies, and as concerns the Penal Code, on the basis of its provision stipulating a revision five years after its entry into force. On that background the then Greenlandic Legal Committee [Det grønlandske lovudvalg] issued opinions on the function of the judicial system and prepared amendments to legislation for the politicians. The proposals of the Commission have been inspired by the positive experience from this interaction between social research, administrators and politicians in the period from the preparation of the reforms until the early 1980s. 2. Commission proposals The Commission finds it desirable to ensure general monitoring of the special legislation for Greenland, both so that the legislation does not become outdated compared with international convention requirements, etc., and so that knowledge on the functioning of the legislation in practice is acquired. While, by definition, general monitoring of legislation and the actual work of preparing legislation is part of the relevant ministry s work, it is not a matter of course today that resources are allocated to socio-legal or other socio-scientific studies of the special legislation for Greenland. Moreover, socio-scientific studies of the judicial system alone would hardly make sense or form a whole without involvement of other constituent elements of society which are now Home Rule affairs, such as the social service and the health service. More specifically, it is recommended to assure knowledge of how the following proposals work in practice so as to provide a basis for correcting any errors or otherwise making amendments. Concerning the Administration of Justice Act: the district judge training initiated the defence counsel training initiated recruitment matters, including salaries

111 109 cooperation between district courts and the professional court of first instance division of competence between district judges and the professional judge of first instance the High Court of Greenland as the appeal instance number, location and prescribed staffing of district courts Concerning the Penal Code: the functioning of the individual sanctions need for other, new types of sanctions To ensure continued revision of the Greenlandic criminal legislation and the legislation on the administration of justice as well as interest in research of Greenland s judicial system it is recommended to appoint a council, the Council of Greenland s Judicial System [Rådet for Grønlands Retsvæsen], with representatives of: the Ministry of Justice the Court Administration the Department of Prisons and Probation the Greenland Home Rule Government the High Court of Greenland Judge the Court of Greenland Judge the Chief Constable of Greenland the Manager of the Prison and Probation Service of Greenland the Association of Local Authorities in Greenland an attorney a defence counsel a university lecturer/researcher It is recommended that the Home Rule Government and the national authorities (the Ministry of Justice) jointly appoint a person from the group of Council members or an external person as chairman. The Commission finds it essential, by statutory provision, to ensure continued professional monitoring of the functioning of Greenland s judicial system. The tasks of the Council will include development of legislative bases, initiation of research as a basis for this, monitoring of the functions and educational needs of the individual judicial authorities and possibly arrangement of seminars for the Home Rule Government on the status within the judicial system.

112 110 Chapter XX Commission proposals for councils, committees, etc. As a consequence of the Commission reform proposals or to follow up on them, a number of councils and committees are proposed. The following table provides a list of the proposals: NATIONAL BODIES NAME COMPOSITION TASKS REFERENCES Council of Greenland s Judicial System Representatives of the Ministry of Justice, the Court Administration, the Department of Prisons and Probation, the Greenland Home Rule Government, the High Court of Greenland Judge, the Court of Greenland Judge, the Chief Constable of Greenland, the Manager of the Prison and Probation Service of Greenland, the Association of Local Authorities in Greenland, an attorney, a defence counsel, and a university lecturer Coordination between Home Rule and national authorities, development of legislative bases, and initiator of research as a basis thereof, and monitoring of the functioning and educational needs of the individual judicial authorities Chapter XIX of the Report and sections 752 and 753 of the Administration of Justice Bill

113 111 CENTRAL LEVEL IN GREENLAND NAME COMPOSITION TASKS REFERENCES Council of Judges The High Court judge, the Court of Greenland Judge, a district judge. In matters concerning appointments, also two representatives of the public The Greenland Crime Prevention Council Central Liaison Committee for the Judicial System concerning Criminal Matters Central Coordination Committee concerning the Prison and Probation Service Police Complaints Board Representatives of the police, the Prison and Probation Service, the Dept. of Social Services, the Dept. of Health, the Association of Local Authorities in Greenland, trade organisations, employer organisations and trade unions The High Court judge, the Court of Greenland Judge, the Chief Constable, the Manager of the Prison and Probation Service Representatives of the Management of the Prison and Probation Service, the Dept. of Social Services, the Dept. of Health and possibly the Association of Local Authorities in Greenland One attorney and two representatives of the public Appointment of district judge candidates, recommendations to the Court Administration on appointment of district judges, permission for district judges secondary occupations, consideration of disciplinary cases concerning district judges Forum for sharing of experience, preparation of informative and educational material and guidance to local SSPK committees Mutual briefing on and discussion of administrative subjects of interest to the entire judicial system Mutual briefing on and discussion of matters of common interest. Preparation of general plans for special groups of clients, such as mentally ill criminals Monitoring of the Chief Constable s handling of complaints and criminal proceedings concerning police staff Chapter VI, sections and , of the Report and sections 10 and 11 of the Administration of Justice Bill Chapter XIII, section 3.1.3, of the Report and sections 754 and 755 of the Administration of Justice Bill Chapter XVI, section 3.6.1, of the Report Chapter XVI, section 3.6.2, of the Report Chapter XVIII, section 3.11, of the Report and Part 4 of Act No. 905 of 16 December 1998

114 112 LOCAL LEVEL IN GREENLAND NAME COMPOSITION TASKS REFERENCES Local Liaison Committee for the Judicial System concerning Criminal Matters Local Coordination Committee concerning the Prison and Probation Service District judge, head of station and Prison and Probation Service employee of the individual judicial district/local district (may call in the social service, if necessary) Representatives of the Prison and Probation Service, the social service and the health service of the individual municipality Mutual briefing on and discussion of administrative subjects of interest to the entire judicial system Mutual briefing on and discussion of matters of common interest Chapter XVI, section 3.6.1, of the Report Chapter XVI, section 3.6.2, of the Report

115 113 Chapter XXI Aggregate financial consequences The Commission proposals, if implemented as a package, are estimated to involve added expenditure of about DKK 155m (mainly 2001 prices) for the proposed capital expenditure, which is non-recurrent, while the annual increase in current expenditure is estimated at between DKK 26m and 30m, of which increased salary expenditure will account for DKK 16-20m. The Commission proposals reflect both an increase in the activities in Greenland and improved standards in terms of buildings as well as casework. A calculation of the estimated added expenditure arising out of the proposals of a chapter is provided at the end of the relevant chapters of the actual Report. This chapter merely provides a summary. Please refer to the relevant chapters (in Danish or Greenlandic) for elaboration of the figures. The expenditure stated must be viewed with some caution because it has been impossible to make estimates of certain expenditure items, and the estimated revenue from the introduction of court fees must be viewed with considerable caution. The proposals imply a rise in annual current expenditure of about 20 per cent from DKK 165m in 2001 to DKK m, once the Commission proposals have been implemented. Simply for building technology reasons, the capital expenditure will have to be allocated over at least three years, but such accrual will also depend on the adoption of the requisite local plans, adaptation of municipal technical facilities, etc., quite apart from its dependence on fitting into the individual Danish Finance Acts [finanslove]. The current expenditure in connection with the radical court reform is more or less cost neutral. The courts save money for salaries and remuneration for judges and lay judges, but have increased expenditure for the significant novelties within the training of district judges, lay counsel (authorised defence counsel) and increased current expenditure, including office expenditure. In addition it is proposed to introduce court fees, cf. chapter IX. The proposed capital expenditure of DKK 23.4m includes a proposal for the erection of a new building for the High Court of Greenland at DKK 15m. To the extent that the judiciary leases premises in existing buildings, most of this expenditure will not be payable, while rent will rise by an amount in the order of DKK 0.5-1m. The item requiring the highest expenditure is the sanction reform wanted by the Greenland Parliament and the public opinion in Greenland, including the consequences of establishing semi-closed units in the existing prisons, erection of a new prison at Tasiilaq and a closed disciplinary unit and a safe custody unit in Nuuk to discontinue the current arrangement under which criminals are sent to Herstedvester for safe custody. The costs involved in this amounts to capital expenditure of DKK 95m and current annual expenditure of DKK 10-13m.

116 114 The Commission has not ranked its proposals in any order of priority. With its proposals, the Commission has presented a reform and a modernisation of the judicial system that will bring Greenland s judicial system up to date. The Commission has not made any comparisons of expenditure in relation to Denmark or other countries or the development of other public sectors in Greenland. This is quite complicated too, one reason being that the composition of tasks varies from country to country and is highly affected in Greenland by the small population base, the geographical extent and the special Greenlandic legal tradition. In any case the outcome of these factors is that an efficient and well-functioning judicial system will be substantially more expensive per inhabitant than in Denmark and other countries. The added expenditure listed in the individual chapters of the Report appear from the list below, and the most important capital expenditure items appear from the subsequent special list. Capital expenditure DKKm Salaries Current expenditure Chapters I-IV Introductory chapters No financial consequences. Chapter V Chapter VI Chapter VII Chapter VIII Chapter IX Chapter X Chapter XI Language Further translating and interpreting assistance for the judicial system. 2.0 Additionally, any initial costs. Court organisation and staff, etc. Expenditure for court buildings, including a new building for the High Court of Greenland, staff, 23.4 (1.94) 1.9 training, etc. Process agents, etc. Training, assignment of defence counsel, etc Common provisions for all court proceedings Video conferencing equipment, witness fees, etc. Additionally, expenses for installation, operation and training. Civil proceedings Court fees (revenue). Expenditure included in chapters VI and VIII. (2.6) Criminal proceedings Assignment of victim advocates. 0.2 Appeal, reopening and enforcement Expenditure included in chapter VI. Chapter XII Crime Proposal of victim assistance centres in most large municipalities Sum

117 115 DKKm Capital expenditure Salaries Current expenditure Brought forward Chapter XIII Crime prevention measures Expenditure for Crime Prevention Council. Additionally, capital expenditure and any expenditure for various projects. Chapters XIV-XV Penal Code No financial consequences Chapter XVI Chapter XVII Enforcement of sanctions Establishment of unified management in Greenland. New prison at Tasiilaq and conversion and extension of present prisons. Expansion of probation offices. Remand prisoners and other detainees No financial consequences Chapter XVIII Chapter XIX Chapter XX Police activities Strengthening of police and higher salaries for local bailiffs, including overheads. Acquisition of police cutter and expansion of police stations. Follow-up on Commission proposals Remuneration, etc., for the Council of Greenland s Judicial System. Commission proposals for councils, committees, etc. Fees, etc., for councils and committees other than those mentioned in chapters XIII and XIX. This amount is an estimate only, and no travel expenditure is included Chapter XXI Total financial consequences (rounded off)

118 116 Commission proposals for major capital expenditure items: DKKm New High Court building 15 New prison at Tasiilaq 17 Establishment of semi-closed units at coastal prisons 2 Establishment of closed and semi-closed units and safe custody unit at Nuuk Prison 76 Acquisition of police cutter 16 New police building at Kangaatsiaq 4 New police building at Qaanaaq 3 New police building at Uummannaq 5 New police building at Upernavik 4

119 117 Chapter XXII Transfer to Home Rule 1. Background The terms of reference include the following: The deliberations of the Commission may include a potential transfer of parts of the judicial system in Greenland, including in particular the Prison and Probation Service, to the Home Rule Government. It is assumed that the Commission will make proposals for the financing of the various tasks when assessing the financial and administrative consequences of such transfer. The Commission has carefully reviewed the current Home Rule arrangement and its background, including the conditions for transfer of fields of responsibility and for a financing scheme in such connection. In 1997 the Commission also procured an opinion from the Ministry of Justice on the possibility of transferring the judicial system or parts thereof to the Home Rule. The Prime Minister s Office has concurred in this opinion. The Commission has unanimously agreed to base its further work on the viewpoints of this opinion and accordingly draws the following conclusion: The Constitution does not prevent a comprehensive transfer of all elements of the judicial system, including legislative competence, structure of system, etc. The only significant requirement made by the Constitution is that the competence granted to the Home Rule Government must be exercised within the framework of the Constitution, including that the Supreme Court remains the supreme court of the realm. A connection will thus remain between the Danish and the Greenlandic judicial systems, and the Supreme Court, as the court of last resort, will have to determine disputes, including control the administration and monitor observance of the limits of the legislative power. The transfer that must be deemed to be really interesting, viz., transfer of legislative competence and thus decision competence in the widest sense of the word, presupposes an amendment of the Home Rule Act. As presented in this opinion there are no legal barriers to such transfer. Transfer of legislative competence, etc., without any amendment of the Home Rule Act is not considered possible. 2. Deliberations of principles The Commission has unanimously decided to describe the advantages and drawbacks of a potential transfer as seen by the Commission, to explain balanced arguments for and against transfer, but not to make any recommendations as to the final political decision: Transfer or no transfer. It follows that the Commission does not want to point to and anyway would not be able to predict the details of an amendment of the Home Rule Act with a view to a transfer of the judicial system or parts thereof, including whether the present block grant principle of the

120 118 Home Rule Act would apply. It is merely stated that the special authorisation statute implementing any transfer of the judicial system might in that event stipulate a framework or minimum conditions and legal standards that would have to be observed in relation to the competence transferred, and that any financing scheme in connection with such transfer would have to be laid down in more detail in the Act on Subsidies to Greenland s Home Rule [lov om tilskud til Grønlands hjemmestyre]. The proposals for reform of the judicial system have not been made with a view to transfer. It has been considered, however, that the reforms may become very burdensome to the Home Rule Government at a transfer. It is therefore assumed that the judicial reform recommended by the Report and the inherent increase of standards will be implemented while the judicial system is Danish. 3. Advantages and drawbacks of transfer The Commission has analysed the advantages and drawbacks of transfer that are common to the courts, the police and the Prison and Probation Service. In terms of organisation the Home Rule Government will have to take over all the activities of the judicial system in Greenland, that is, the courts, the police, detentions, prisons, halfway houses and probation offices with pertaining staff, buildings and aids (vessels, cutters, etc.) and with the local executive authorities (High Court, Chief Constable s Office, Prison and Probation Service Management). The legislative competence will be taken over by the Greenland Parliament. This means that the Home Rule Administration must be able to perform the work of preparing legislation today performed by the Ministry of Justice, and that a member of the Home Rule Government, as accountable to the Greenland Parliament, must be in charge of law preparation and administration of the entire field of responsibility. The Home Rule Government will also have to handle the managerial tasks today handled by the Ministry of Justice, the Court Administration, the National Commissioner of Police, the Director of Public Prosecutions and the Department of Prisons and Probation. The Commission cannot preclude that it might be possible, in connection with a concrete authorisation statute transferring the judicial system, to find a way of excluding special functions, such as the Board of Appeal, from a transfer and maintaining them as a function of the realm for reasons of due process and the special requirements of legal expertise, cf. below. But this is part of the further political decision-making process between the Home Rule Government and the Danish Government. Advantages of transfer concerning responsibility and proximity: the Greenland Parliament and thus Greenland s population is ensured direct and immediate responsibility for the stipulation of rules. Legislation is made in a forum with in-depth knowledge of conditions in Greenland.

121 119 The conscience of and responsibility for the judicial system felt by the Home Rule Government and the population can be strengthened as this field of responsibility will become part of the overall priority ranking of the Home Rule Government. Closer contact with municipalities and ordinary citizens will make the activities more relevant and have an encouraging effect on active political and practical participation. Any need for changes can be realised and lead to new initiatives more rapidly. Closer contact between the political and the administrative levels may result in a better position on the political agenda for legal policy, which might improve conditions for crime prevention efforts of both general and specific relevance. Depending on the wording of the Home Rule Act, the authorisation statute and the Subsidies Act, the financial control of funds for the judicial system will pass to a greater or lesser extent from the Danish Parliament to the Greenland Parliament. Regard for the independence of the judicial system has given rise to special deliberations. To ensure the independence of the judiciary in relation to the executive, it is proposed to establish an independent court administration if the courts and the administration of justice are transferred to Home Rule. A consequence of this regard for the principle of separation of powers is that the Greenland Parliament and the Home Rule Government will not have any direct influence on the administration of the courts even though the field of responsibility were transferred. However, there are also general questions of non-involvement due to the limited size of the Greenlandic population. In a small society, preservation of real separation of powers poses special problems due to personal connections. Moreover, in case of a transfer, the police, the prosecution function and the Prison and Probation Service will become part of the executive (the Greenland Parliament/Home Rule Government), and it that connection the question has been raised whether such a scheme would be perceived by the population as sufficiently independent in its functions in relation to the Greenland Parliament and the Home Rule Government. No potential solutions can be pointed to in order to secure the independence of these administrative fields. Giving due regard to the rule of law is a vital characteristic of a judicial system. With its proposals the Commission has assumed that the future central posts and the management of the individual fields of responsibility will still be handled by lawyers. However, transfer of the legislative competence and central managerial tasks implies that the Home Rule agencies in question must be supplied with further legal expertise, including technical legislative expertise. It must be considered doubtful whether the Home Rule Government will become able, within a foreseeable time, to build up the requisite administrative and professional capacity, especially legal capacity, to cope with both the issuing of rules for and actual administration of the fields of responsibility that a transfer involves.

122 120 Another problem is that a number of tasks presupposing special professional expertise will have to be taken over, including human resources administration, administration of construction, building and maintenance activities, insight into professional goals and working methods, staff training and other development strategies. Qualified staff and managers will have to be appointed and trained for handling these tasks. Alternatively, it may be possible to continue to draw on the professional expertise of the Danish authorities, such as in the existing cooperation with the Ministry of Education. However, this would reduce or blur the independent responsibility for the functioning of the judicial system. In a changing society it is essential to be able to continue the development of the organisation and the professional objectives and working methods. As an integral part of the Danish judicial system, the judicial system of Greenland is supplied with both knowledge and experience of legal subjects. At a transfer of the judicial system to the Home Rule Government, these close ties will to some extent be broken, the probable consequence being a loss of value to the judicial system. 4. Consequences for particular fields of responsibility Special consequences for particular fields of responsibility might be: Recruiting problems for the police, which has been supplied with posted police staff from Denmark for many years, at present about 20 per cent of the force. Due to the close connection between prisons, halfway houses and probation offices, the Prison and Probation Service should not be split up in connection with a transfer. The Prison and Probation Service should constitute a unity in consideration of effective management of enforcement in its various stages and of the resources therefor. Transfer of the activities of the Prison and Probation Service to the Home Rule Government might improve coordination with the social and health services, etc., both at the central and the local levels. Following a transfer, the specialist knowledge so far supplied to the Prison and Probation Service of Greenland as part of the activities of the Danish Prison and Probation Service will have to be supplied to the Management of the Prison and Probation Service, possibly in the form of external consulting services. As mentioned above, there is a risk that the Prison and Probation Service might be downgraded in competition with other urgent social tasks. 5. Consequences of isolated transfer of fields of responsibility Any split-up of the police, the Prison and Probation Service and the judiciary will entail major problems of coordination. The Commission is of the opinion that there should be no isolated transfer of a single authority, but a complete transfer of police, judiciary and the Prison and Probation Service.

123 Financial consequences Any calculation of this must generally be based on the annual capital and current expenditure for the individual fields of responsibility included in the Finance Act at the time of transfer. All other things being equal, the Commission forecasts substantially higher expenditure in a Home Rule framework than the expenditure that appears from the appropriations of the Danish Finance Acts: Authorities must be built up and continue to carry out the work of preparing legislation and managerial tasks in future. In Denmark they are merely a hard-to-calculate part of the common expenditure for the administration as a whole. Economies of scale are thus lost by transfer. The existing and most recently initiated training activities must be continued by the Home Rule Government. Other economies of scale obtained because Danish authorities handle a number of tasks will disappear in connection with a transfer. Salaries and current expenditure for the entire judicial system can be summarised as follows: Current expenditure for Greenland s judicial system, as calculated in the Report: Courts and administration of justice DKK 32m Prison and Probation Service DKK 27m Police DKK 106m Total DKK 165m In addition, the estimated expenditure defrayed in Denmark for administration of Greenland s judicial system (cf. chapter XXII, sections 7.2 to 7.4, of the Report) has been calculated at: Courts and administration of justice DKK 1.45m Prison and Probation Service DKK 1.20m Police DKK 2.40m Total DKK 5.05m As mentioned just above, the corresponding expenditure in Greenland after a transfer must be expected to be higher, partly due to loss of economies of scale, partly due to directly derived capital and current expenditure. As mentioned, the Commission has worked on the basis of the hypothesis that the judicial system reforms recommended in the Report and the inherent increase of standards will be implemented while the judicial system is Danish. If this hypothesis holds true, the judicial system after capital expenditure of about DKK 155m will cost further DKK 26-30m a year in increased salaries and current expenditure, cf. chapter XXI above. The total current expenditure a year following a transfer must then be expected to amount to approximately DKK 200m.

124 122 Chapter XXIII Administration of Justice Bill for Greenland with notes This chapter contains the Commission s Administration of Justice Bill for Greenland. The Bill is based on a thorough revision of the current Administration of Justice Act, which dates back to The Commission s Administration of Justice Bill implies repeal of the current Administration of Justice Act for Greenland. Chapter XXIV Penal Bill for Greenland with notes This chapter contains the Commission s new Penal Bill for Greenland. The Bill is based on a thorough revision of the current Penal Code, which dates back to The Commission s Penal Bill implies repeal of the current Penal Code for Greenland. Chapter XXV Bill amending various provisions in connection with the entry into force of a new Administration of Justice Act and Penal Code for Greenland with notes Implementation of the Commission s Administration of Justice Bill and Penal Bill implies several amendments to other legislation. The Commission s proposals for such amendments are listed in this chapter. Chapter XXVI Lists of literature and appendices This chapter includes lists of the previous publications of the Commission (studies, reports, debate and informative newspapers), appendices included in the volume of appendices to the Report, and other essential appendices which have not been published, but have been included in the collection of references of the Commission (external opinions and reports procured by the Commission and certain internal reports and memoranda, etc.). In addition, there is a general list of literature.

125 REPORT ON GREENLAND S JUDICIAL SYSTEM SUMMARY Kriminaliteten og kriminalforsorgen