“A well-trained and well-functioning police is of vital importance for a democratic society. It is equally important that the public has confidence that the police, with the powers with which the police has been invested, performs its tasks in a correct and proper fashion. Trust in the police requires inter alia that complaints against police personnel receive proper consideration and that the complaints system is perceived to be trustworthy.”

Report on the handling of complaints against police personnel, 1994, submitted by the committee established by the Danish Ministry of Justice and mandated to make recommendations for a new complaints system

…As stated above, the particular Danish system in which the administration of the police and the public prosecution are merged at the local level raises concerns regarding the principle of the rule of law.”

The Danish government’s Vision Committee in its report of May 2005 on the future structure of the police and the public prosecution

“But Jens Arne was made responsible for his own death and I believe that they have been working their way down that path all along, because right from the start the regional public prosecutor decided that the police officers should not be blamed for anything.”

Jonna Ørskov, mother of Jens Arne Ørskov in interview with Amnesty International in 2006

Introduction

Amnesty International is concerned that the mechanisms in Denmark for addressing alleged human rights violations by police officers fail to respect victims’ rights to redress and reparation. The current system fails to ensure that such allegations are investigated promptly, thoroughly, independently and impartially, that persons responsible for such violations are brought to justice, and that victims receive adequate reparation, including compensation. The five cases in this report highlight a range of alleged human rights violations, from excessive use of force, physical ill-treatment, to a death in custody. In these five cases, alleged victims or relatives to alleged victims have sought redress through the appropriate channels available to them, and claim that their complaints have not been dealt with effectively. Many others, however, have told Amnesty International that they have not submitted their complaints to the appropriate bodies, because they have no confidence that their rights to redress and reparation will be addressed independently and effectively.

Amnesty International is aware that the government has commissioned a committee to conduct an assessment of the current police complaints system and that the committee expects to publish its findings and possible suggestions to adjustments of the system in 2008. This report, with its recommendations, is Amnesty International’s contribution to the assessment of the current system, in the context of international human rights standards, for an effective and impartial police complaints system.

Amnesty International has had long-standing concerns about the mechanisms for investigating alleged human rights violations by police officers in Denmark.

The organization first voiced concerns in 1994, in its report entitled Denmark: Police Ill-treatment (AI Index: EUR 18/01/94). The report highlighted a series of cases of alleged police ill-treatment and excessive use of force, including during the 18-19 May 1993 demonstrations in Norrebro when 11 people were shot and wounded, and in policing operations in Christiania in 1992-93.

In connection with the operations in Christiania, Amnesty International focused on the widespread use of the fixed leg-lock as a method of restraint and urged the authorities to ban this practice. This practice was subsequently banned.

Lastly, Amnesty International highlighted the case of Benjamin Christian Schou, who at some point between his arrest and his transport to the police station, asphyxiated and suffered cardiac arrest and severe brain damage - a case which had given rise to debate as to the effectiveness and impartiality of the police complaints system in Denmark.

One of the key areas of focus for recommendations was the procedures for investigating and acting on complaints against the police^¹. Amnesty International called on the government to ensure that, in future, all bodies responsible for handling complaints against police practice and decisions to be completely impartial and independent.

Amnesty International further recommended that:

The complaints body should consist of people of acknowledged independence and probity, who are not members of the police force, and that the complaints body should have at its disposal its own corps of independent investigators to look into complaints.
The body should be afforded all necessary powers and authority to conduct investigations into complaints against the police, including the power to summons witnesses and to subpoena evidence and documents.
The body should, at a minimum, be given the power to: decide whether a case should be concluded or if an apology should be issued; recommend to appropriate authorities that adequate compensation be paid to the victim; and recommend whether criminal or disciplinary proceedings should be brought against the perpetrator.
Amnesty International further recommended that in order to maintain the independence and impartiality of the police complaints process, no police authorities should sit on the complaints body, and that all possible steps be taken to ensure the independence and impartiality of the investigation of complaints against police.

At that time the Minister of Justice had already commissioned a committee with the task of making recommendations for a new complaints system. As a result of the recommendations of the committee, the Danish Parliament adopted provisions for a new complaints system, which came into force on 1 January 1996.

The current police complaints system has been in force for over 11 years. This report examines -- in the context of five illustrative cases of complaints of police misconduct -- the current system, in light of Amnesty International’s recommendations made in 1994 and international human rights standards.

The current system replaced the much-criticized system of local boards. Under the previous system, the police sat on the boards and participated in handling police complaints cases and subsequently decided on the complaints as well. Local boards were perceived as rarely ruling in favour of the complainant. In comparison to the previous system, the present system, with the six regional Police Complaints Boards, has removed the most glaring inadequacies. The Police Complaints Boards do not have police officials on them. However, lawyers have indicated to Amnesty International that in practice any improvements in relation to the former system have been modest. Some advise their clients against wasting time and effort on a complaint because in their estimation there is little chance of a favourable ruling. Some indicate that the Police Complaints Boards – as an independent watchdog – represent an improvement, but at the same time state that in their opinion the Boards should be given more powers in order to have any significant impact.

Complaints against the police are investigated and decided in the first instance by the regional public prosecutors. Before issuing a decision on the case, the regional public prosecutor must present the case to the region’s Police Complaints Board along with the draft decision. The Board can then agree or disagree with the regional public prosecutor’s proposed decision, but the Board’s opinion has no binding legal power. Although the Board can lodge an appeal with the Director of Public Prosecutions, this happens extremely rarely. When the Board disagrees with the intended decision of the regional public prosecutor, the prosecutor makes explicit note of this disagreement in the written decision to the complainant. The complainant as well as the police officer in question can appeal the decision to the Director of Public Prosecutions, notwithstanding the point of view of the Board.

Even the government’s own Vision Committee (mandated by the Government to make recommendations for a new structure for the police and public prosecution) states in its report of May 2005 that the present system of merging the police and the public prosecution at the local level, which is unique to Denmark and Norway, in principle is not conducive to the independence of the prosecuting authority in supervising the lawfulness of police conduct.

The Director of Public Prosecutions’ Annual Reports show statistically how very few cases result in the complainants winning a ruling in their favour.^²The authorities have stated that this should be seen as a general indication of the quality - the unfounded nature - of the complaints. Defence lawyers on the other hand have expressed concern that so few complaints have been successful, and view the main cause for this as the lack of independence and impartiality with which complaints against the police are handled.

In the present report Amnesty International highlights five cases in which individuals (or their relatives) have made complaints alleging that they were subjected to human rights violations by the police. The cases raise questions about the thoroughness and impartiality of investigations, the lack of separation between the police and the prosecution authorities, and lack of transparency in decision-making.

Generally the Danish police force is perceived by the public to exercise its powers with restraint and discretion.^³Furthermore, every police official has to go through training at the Police Academy (43 months including trainee service) aimed at enabling him or her to meet the challenges of the job in a professional and lawful manner. However, in a force of approximately 11,000 police officers, and given the conflict-prone nature of the job, mistakes or misconduct take place. It is crucial that the way these mistakes or misconduct are dealt with is transparent, impartial, independent and effective, in conformity with Danish law and international human rights standards.

In this report Amnesty International has made a number of recommendations to the Danish government, which, if implemented, could lead to strengthening respect and protection of human rights and the rule of law and increase the confidence of the public and the police in a fair, independent and effective system for handling complaints against the police. The recommendations include: the separation of the police and the public prosecution; to carry out a thorough review of the current practices; and to establish a new complaints system.

In particular, the organization recommends that the regional public prosecutors should be replaced with an independent complaints body empowered to investigate and decide on police complaints that should have no ties or connections, institutional, structural or otherwise, with the police or the public prosecution.

The complaints body should be given the powers to make legally binding decisions that apologies be should issued or criticisms should be stated. Furthermore, the complaints body should be given the powers to make recommendations that disciplinary actions be taken, and the disciplinary body should be obliged to report back to the complaints body on the outcome of the disciplinary proceedings.

Furthermore, the complaints body should be empowered to make recommendations to the regional public prosecutors on whether to close a complaints case or to bring prosecutions or other measures. Decisions made by the regional public prosecutor should be appealable by the complaints body to a court.

Lastly, Amnesty International recommends that the protection of the rights of the victims of police misconduct be strengthened so as to enable victims to exercise their right to reparation, including compensation. This includes the right for the complainant to free legal aid; the right to seek independent medical expertise for a second examination; and the right for relatives of a person who died in police custody to have their doctor present at the autopsy or an independent post-mortem examination, at state expense. The strengthened protection of the victims’ rights further includes the right to appeal any decision to discontinue or close a complaints case to a court.

Amnesty International based this report on court records in complaints cases and other criminal proceedings; official documents; media reports and documentaries; and on interviews with lawyers, victims or their relatives, and meetings with representatives of the Ministry of Justice, the Director of Public Prosecutions and Police Complaints Boards.

Relevant international human rights standards

The quality of the work and performance of the police in Denmark is decisive for ensuring respect for the rule of law and human rights and the quality of life in this country.

In monitoring and reporting on respect for human rights, Amnesty International analyzes domestic law and practices in the light of international human rights standards. Such standards require police to respect and protect the human rights of individuals; independent, impartial, prompt and thorough investigations of allegations of human rights violations and other police misconduct; the authorities to bring those responsible for violations to justice; and the authorities to ensure reparation to the victim. The international human rights standards of particular relevance for an analysis of the systems for handling cases of alleged police misconduct in Denmark include binding international human rights treaties, and non-treaty standards which provide more detailed guidelines on the implementation of the treaties. Among the key relevant international human rights treaties are: the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Among the key non-treaty standards are: the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, the UN Code of Conduct for Law Enforcement Officials, and the European Code of Police Ethics.^⁴

The right to an effective remedy

The International Covenant on Civil and Political Rights, Article 2, para. 3(a), obliges State Parties to undertake to ensure that any person, whose rights or freedoms under this convention have been violated, has access to an effective remedy, notwithstanding that the violation has been committed by a person acting in an official capacity. The Human Rights Committee, set up under the Covenant, has issued General Comment No. 7 (on effective investigations and remedies for victims of torture or other ill-treatment).

The European Convention on Human Rights, Article 13, obliges the State Parties to ensure everyone whose rights and freedoms as set forth in the convention are violated the right to an effective remedy before a national authority, notwithstanding that the violation has been committed by persons acting in an official capacity. The European Court of Human Rights has held that Articles 2 (the right to life) and 3 (prohibition of torture or other ill-treatment) of the Convention incorporate the duty of states to ensure prompt, independent and effective investigations.

The UN Convention against Torture, Articles 12, 13 and16, require state parties to ensure that their competent authorities proceed to a prompt and impartial investigation of allegations of torture or other ill-treatment; and to ensure the right of a complainant to have his or her case examined promptly and impartially by a competent authority.

UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, principles 22 and 23, oblige governments and law enforcement agencies to establish effective reporting and review procedures, and to ensure that persons affected by the use of force or firearms, or their legal representatives, shall have access to an independent process, including a judicial process. In the event of the death of such persons, the same rights to effective remedy apply to their dependants.

The European Code of Police Ethics, section VI, principles 59-62, states inter alia, that the police shall be accountable to the state, the citizens and their representatives, and that they shall be subject to efficient external control. Furthermore, it states that state control shall be divided between the legislative, the executive and judicial powers. Lastly, public authorities shall ensure effective and impartial procedures for complaints against the police.

Standards on the right to life and the prohibition of torture or other ill-treatment

The right to life

The European Convention on Human Rights, Article 2, and the International Covenant on Civil and Political Rights, Article 6, require states to respect and protect everyone’s right to life.

The European Code of Police Ethics, principle 35, states that the police and all police organizations must respect everyone’s right to life.

Prohibition of torture, inhuman or degrading treatment or punishment

The UN Convention against Torture, Article 2, requires each State Party to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

Article 1 of the Convention against Torture defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

Furthermore, Article 16, para. 1, requires each state party to undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The International Covenant on Civil and Political Rights, Article 7, and The European Convention on Human Rights, Article 3, require states to protect and respect the right of all persons not to be subjected to torture or other ill-treatment.

The European Code of Police Ethics, principle 36, states that the police shall not inflict, instigate or tolerate any act of torture or inhuman or degrading treatment or punishment under any circumstances.

The UN Code of Conduct for Law Enforcement Officials, Article 5, states that no law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment

On the use of force or firearms

In view of the requirement of states to respect and protect the right to life, international standards strictly limit the circumstances and manner in which law enforcement officials may use force against persons.

The UN Code of Conduct for Law Enforcement Officials, Article 3, states that law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.

The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, principle 4, states that law enforcement officials may use force or firearms only if other (non-violent) means remain ineffective or without any promise of achieving the intended result.

Principle 5 of the Basic Principles states that when the lawful use of force and firearms is unavoidable, law enforcement officials shall a) exercise restraint in such use, and act in proportion to the seriousness of the offence and legitimate objective to be achieved, and b) minimize damage and injury, and respect and preserve human life, and c) ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment.

Principle 7 of the Basic Principles requires governments to ensure that arbitrary use of force and firearms by law enforcement officials is punished as a criminal offence under their law.

The European Code of Police Ethics, principle 37, states that the police may use force only when strictly necessary and only to the extent required to obtain a legitimate objective.

The rights of victims

International human rights standards also guarantee the right of victims of human rights violations to redress, including to reparation which includes, among other things, just and adequate compensation and measures for complete rehabilitation. (See, among others, the UN Convention against Torture, Article 14; and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly in 1985.)

Danish law implementing the international human rights treaties and standards on policing

International human rights treaties require States Parties to take the necessary legislative, administrative and other measures to ensure that law and practice conform with the state’s obligations under international human rights law. The State Party is obliged to ensure that there is a formal legal basis for protecting and enforcing the human rights in question. Furthermore, the above-cited non-treaty standards, which provide more detailed guidelines on the implementation of the treaties, should be taken into account and respected by governments within the framework of their legislation and practice.

The right to life is guaranteed in the Danish Penal Code which applies to everyone, including police officers and which penalizes homicide/involuntary manslaughter and death as a result of violence.

There is no provision in the Penal Code which expressly defines torture, as laid down in the UN Convention against Torture. The Danish government’s stance has been that torture (and inhuman and cruel and degrading treatment or punishment) is already penalized in that the various elements of torture are penalized in the Penal Code (violence, maltreatment, molestation etc.), but in autumn 2007 the government announced that it expected to present a bill on adopting a specific provision of torture in 2008. At present degrading treatment is covered by the provisions on violence in the Penal Code.^⁵

In its concluding observations on the government’s implementation of provisions in the Convention against Torture, the Committee against Torture recommended in May 2007:

“Definition of torture

The Committee notes that the Ministry of Justice has recently requested the Standing Committee on Criminal Matters to consider the possibility of inserting a special provision on torture in the Criminal Code. Notwithstanding the State party’s ongoing efforts to review this issue and the existing provisions of the Criminal Code, the Committee reiterates the concern expressed in its previous conclusions and recommendations (CAT/C/CR/28/1) with regard to the absence of a specific offence of torture, consistent with articles 1 and 4, paragraph 2, of the Convention. While noting the introduction of a Defense Command Directive on the prohibition of torture and other cruel, inhumane or degrading treatment or punishment in the Armed Forces, the Committee regrets the State party’s decision to exclude a special provision of torture from the new Military Criminal Code. (Articles 1 and 4)

The Committee calls upon the State party to enact a specific offence of torture, as defined in article 1 of the Convention, in its Criminal Code as well as in the Military Criminal Code making it a punishable offence as set out in article 4, paragraph 2, of the Convention.”^⁶

Arbitrary or disproportionate use of force or firearms

Depending on the seriousness of the force applied or the use of firearms, such actions are criminalized in the Penal Code, in Chapter 25 crimes against life and body ranging from homicide to various degrees of violence/mistreatment/abuse/assault/aggravated assault. These provisions apply to everyone including the police.

The Danish Act on Police Activities, general provision on the use of force, Chapter 4, section 16, is worded as follows:

“The police may use force only if necessary^⁷and justified and only by such means and to such extent that are reasonable relative to the interest which the police seek to protect. Any assessment of the justifiability of such force must also take into account whether the use of force involves any risk of bodily harm to third parties.” Section 16, subsection 2, states: “Force must be used as considerately as possible under the circumstances and so as to minimize any bodily harm.”

In the Order on the police’s use of certain forcible means, of 21 September 2004, further detailed provisions for the use of force, firearms, truncheons, police dogs and tear gas are laid down.

The Order contains four chapters – one for each of the following means of force – firearms, truncheons, dogs and tear gas. They all specify the concrete situations (threats/dangers) in which the means can be applied, and all require an assessment of the proportionality of the measure to be taken so as to prevent disproportionate use of force, minimize injuries, etc.

The obligation for the State to ensure the right to an effective remedy before a national authority

Act on Administration of Justice chapters 93b, 93c and 93d

Chapter 93b lays down the legal framework for the treatment of complaints about police personnel misconduct (misconduct as opposed to complaints regarding alleged criminal offences).

Chapter 93c lays down the legal framework for the treatment of criminal cases against police personnel.

Chapter 93d lays down the legal framework for the regional Police Complaint Boards, their constitution, their function and their powers.

Initial observations on the incorporation of international human rights standards in Danish law

Apart from the lack of an independent provision on and full definition of “torture” in the Penal Code, the formal incorporation of international human rights standards on policing into domestic law appears to be in place. It should be noted that the wording of the Danish provisions on the police’s use of force in the Act on Police Activities, and the Order on the Police’s use of certain forcible means follow the wording of international human rights standards rather closely. However, Amnesty International continues to have concerns about their implementation.

As for the obligation to ensure an effective remedy for human rights violations by the police, the objective of this report has been to ascertain whether the complaints system is in fact impartial and independent on the practical level.

To maintain high standards in police work it is crucial that the complaints system is – and is perceived and experienced to be – effective by the public as well as by the police.

Historical overview of the complaints procedures

Until 1996 complaints against the police were handled by bodies called Local Boards and by the police chief constable of the district involved in the complaint case. The Local Boards decided whether a complaint should be investigated in substance or whether an investigation should be rejected, because the complaint was unfounded. In either case, the chief constable (or chief commissioner in Copenhagen) decided on the complaint case.

The local police sat on the board, which was comprised of the police chief constable, two members appointed by and among the police personnel in the police district, and the mayors of the municipalities covered by the police district. For every 100,000 extra inhabitants exceeding 30,000 inhabitants, municipalities were entitled to appoint one more representative in addition to the mayor. In Copenhagen the Local Board was comprised of the chief commissioner of police, two members chosen by and among the police personnel in the police district, one mayor (Copenhagen has seven mayors) and four members chosen by and among the members of the Copenhagen City Council. When deciding on police complaints the Local Boards would be joined by an additional member appointed by the Danish Bar Association. Thus any decision on a complaint about police conduct would be taken by three members of the Copenhagen Police, a mayor, four members of the City Council and one defence barrister.

The Board had the powers either to reject the request for an investigation on grounds that the case was unfounded or to decide that an investigation should be initiated. If the Board considered a complaint case to be unfounded the case was submitted to the police chief constable (in Copenhagen the police chief commissioner) for further action and a decision.

In cases where the Board found that an investigation was needed, the Board could also decide whether the investigation of the complaint should be conducted in a court of law or by a regional public prosecutor. The results of the investigation were presented to the Board, and the Board would decide whether the case was now fully investigated or needed further investigation. If fully investigated, the case would be submitted to the police chief constable (in Copenhagen the police chief commissioner) for further action and a decision. If the Local Board decided that even further investigation was needed, this decision was also furthered to the police chief constable for action and decision.

Thus the local police participated at all levels of the decision-making in cases involving its own personnel. It was perceived to be unreasonably difficult for members of the public to be successful in obtaining redress when lodging a police complaint.

Amnesty International’s June 1994 report on alleged ill-treatment by police in Denmark, among other things, raised concern about the system for handling complaints against the police. The concern about the system highlighted by Amnesty International and others^⁸contributed to the decision to establish a different complaints system.

The 1994 Committee

In 1994 Bjorn Westh, the then Minister of Justice, appointed a committee comprising representatives of the judiciary, the police and the prosecuting authorities, professors of law and the Danish Bar and Law Association, which was mandated to make recommendations for changes to the police complaints system^⁹. This committee (hereafter referred to as the 1994 Committee) stated the following in its report (Report No. 1278 of 1994 on handling complaints against police personnel), p. 12:

“A well trained and well functioning police is of vital importance for a democratic society. It is equally important that the public has confidence that the police, with the powers with which the police have been invested, perform its tasks in a correct and proper fashion. Trust in the police requires inter alia that complaints against police personnel receive proper consideration and that the complaints system is perceived to be trustworthy.”

“It is essential that the citizen, if he believes himself to be aggrieved by the police, can feel confident that his complaints will be treated fairly. It is therefore necessary to ensure an effective, rapid and impartial handling of all complaints of abuse of power, misuse of authority or other misconduct on the part of the police in the exercise of its powers.” (p. 12)

“Furthermore, it is also in the general interests of the police that the investigations should be made as impartial as possible. Any suspicion, which, rightly or wrongly, is cast on the investigation conducted by the police itself, renders it extremely difficult for the police to clear itself of even the most manifestly ill-founded accusations.” (p. 13)

The 1994 Committee recognized that it is vital not only to have a reliable and well-trained police force and an effective complaints system, but also that the public experience the complaints system as effective, prompt, impartial, and fair.

On the basis of the 1994 Committee’s report, the government and Parliament decided to establish a new complaints handling system in which the regional public prosecutors investigate complaints against the police, and make the final decision after consideration of the case by the Regional Police Complaints Board. The new system came into force in 1996.

In the course of the debate in the Danish parliament prior to the passage of the bill on the present complaints system, concern was expressed that this system would not constitute any major change or improvement of the old system. The critics were concerned that given the lack of separation between the police and prosecution at the lower levels of the justice system the regional public prosecutors would not exercise the necessary impartiality in their investigations and decision-making. In Denmark the prosecuting authority of first instance (i.e. the lower courts) and the police are merged into one at the local level; the chief constable (since the reform of January 2007: the chief police commissioner)^¹⁰has a dual role as head of the police and head of the public prosecution authority in his or her district. Throughout the first 10 years of their careers police lawyers (prosecutors) rotate between the police, the regional public prosecutor’s office, the Director of Public Prosecutions, and (for some) the Ministry of Justice. Critics of the system claim that this creates a sense of collegiality between the police and the public prosecution that is not conducive to impartiality and objectivity in dealing with complaints against the police.

The current police complaints system

Under the current system it is the regional public prosecutor (in each of the six regions of Denmark) that receives, registers and is charged with investigating complaints against police officers from the particular region. The regional public prosecutor is responsible for interviewing the complainant, the officer against whom a complaint has been lodged (and his colleagues) and (other) witnesses. In practice the regional public prosecutor often has police officers from the Danish National Police flying squad interview the implicated parties, particularly in cases involving large numbers of complainants and witnesses. Local police are not supposed to be involved in the investigations, except for situations where immediate action has to be taken to avoid loss of evidence, or when the prosecutor refers minor misconduct cases to be settled at the local level.

If the testimony (statement) is given in a court of law, the complainant as well as the police officer against whom the complaint has been lodged may be granted legal aid. Apart from this, the court can grant legal aid upon a request from the complainant or the police officer if the complexity and course of the case so warrant. The legal aid is free, notwithstanding the complainant’s or the police officer’s income.

A complaint about a forcible arrest can simultaneously be a complaint about irregular conduct (misconduct) and a complaint about a criminal offence. If criminal charges against the police officer cannot be ruled out immediately, the police officer will be interrogated with the legal rights and privileges of a suspect.

Regional Police Complaints Boards

For each of the six regional public prosecutors there is a regional Police Complaints Board consisting of three members, an attorney (defence barrister), who is the chairman of the board, and two lay judges.

The regional public prosecutor informs the Police Complaints Board about complaints and reports of incidents concerning police officers’ alleged misconduct or criminal offences. The Board can then indicate to the regional public prosecutor that an investigation is needed. But the regional public prosecutor can always investigate complaints on his or her own initiative notwithstanding the position of the Board.

The Board receives copies of the evidence that is obtained by the regional public prosecutor in the course of the investigation. The regional public prosecutor must inform the Board of any major decisions made in the course of the investigation. The Board can make binding requests of the regional public prosecutor that specific investigatory steps be taken. If in a criminal investigation, the regional public prosecutor does not act in accordance with a request from the Board, the question will be decided on by a court of law.

When the regional public prosecutor has completed investigations into the case, he or she will produce a report on the result of the investigation. This report must contain information on the course of the investigation and the factual circumstances of importance to the decision on the case and an assessment of the weight of the evidence gathered. In the report the regional public prosecutor must indicate which decision he or she proposes to take. This report is then forwarded to the Board.

The regional Police Complaints Board may state that it agrees with the regional public prosecutor’s proposed decision – or disagrees. If the Board expresses its disagreement, the regional public prosecutor has the discretion either to concur with the opinion of the Board or to proceed with the originally proposed decision. The statement of the Board is a recommendation; the Board does not hold any legal power to overturn the decision of the regional public prosecutor.

If the regional Police Complaints Board disagrees with the regional public prosecutor’s proposed decision, and if the regional public prosecutor executes the decision notwithstanding the Board’s opinion, the Board has the option of appealing against the decision to the Director of Public Prosecutions. This, however, happens extremely rarely. In 2004, 2005 and 2006 the Police Complaints Boards only appealed regional public prosecutors’ decisions in three cases each year out of 975, 966 and 906 decisions respectively^¹¹. Moreover, if the Board disagrees with the intended decision of the regional public prosecutor, the prosecutor makes explicit note of this disagreement in the written decision to the complainant. The complainant as well as the police officer in question can appeal the decision to the Director of Public Prosecutions, notwithstanding the point of view of the Board. On average the Director of Public Prosecutions alters the decision of the regional public prosecutor in one to three per cent of the cases that are appealed to him – by the complainants, the police officers or the Complaints Boards. The Director of Public Prosecutions’ decision is final and not subject to review by the Board, the Minister of Justice or any other body.

The chairman of the regional Police Complaints Board of Copenhagen has stated to Amnesty International that the small number of appeals is due partly to the fact that in the vast majority of cases the Police Complaints Boards concur with the assessments and recommendations made by the regional public prosecutors, and partly to the fact that the Police Complaints Boards do not appeal all cases of dissent to the Director of Public Prosecutions, but only those deemed to be a matter of principle.

The Boards can also make recommendations (requests) on individual incidents of their own accord and make general recommendations as to the treatment of certain types of cases. However, the regional public prosecutors and the police are not obliged to follow these general recommendations.

The Police Complaints Board does not itself interview the complainant, the police officer against whom a complaint is filed, or any witnesses, but reaches a decision on the basis of the regional public prosecutor’s written recommendation along with the evidence procured in the course of the investigation. The Police Complaints Board may, however, request that the regional public prosecutor appear before the Board and present the case.

Amnesty International’s concerns

Amnesty International is concerned that while organizationally independent of the police, the Police Complaints Boards, as currently mandated, cannot be considered to ensure an effective oversight of investigations. Lacking the authority to conduct their own interviews and investigation, the Boards are not granted sufficient powers to ensure effective independent review or oversight of the investigation of complaints against the police.

Moreover, while the Police Complaints Board can appeal the regional public prosecutor’s decision to the Director of Public Prosecutions, if it does not concur with the decisions reached by the Director of Public Prosecutions it has no further recourse.

Amnesty International would, therefore, recommend that the Police Complaints Boards be maintained as an independent oversight body and be given the powers to reinvestigate cases thoroughly and the right to appeal any decision it disagrees with to a judicial authority.

Minor misconduct cases

In minor misconduct cases the regional public prosecutor does not conduct investigations and decide on the matter, but refers the case to be resolved locally. This means that the complainant meets with a senior officer at the place of duty of the police officer against whom the complaint is lodged, to discuss with a view to reaching some common understanding of the incident. At the meeting, or consultation, a note on the proceedings and a report of the meeting is drawn up and sent to the regional public prosecutor. The regional public prosecutor in turn sends a copy of the note to the Police Complaints Board for its information. Amnesty International recognizes that it is desirable to avoid overburdening the complaints system with minor cases and takes note of the fact that the complainants, whose cases are referred to this procedure, are informed that they can insist on having their complaint handled by the regional public prosecutor and the Police Complaints Board.

Complaints about police conduct and complaints about criminal offences

According to the Director of Public Prosecutions’ annual reports of 2005 and 2006, 367 and 405 complaints were lodged against police conduct respectively and 567 and 584 complaints pertaining to criminal offences by police were lodged respectively. Out of the 567 and 584 criminal cases, 252 and 277 complaints respectively pertained to traffic offences. Nine and 20 cases under section 1020a, subsection 2, of the Administration of Justice Act (involving death or serious injury while in police custody) were registered in 2005 and 2006 respectively.

In the same period, 2005 and 2006, the Police Complaints Boards handled 387 and 379 police conduct complaints, 579 and 527 criminal offence complaints (including 259 and 246 traffic complaints) and 10 and 11 cases under section 1020a, subsection 2, of the Administration of Justice Act.

Complaints about conduct – or misconduct – range from the excessive use of force in connection with arrest, to abuse of authority during an arrest or search, other forms of incorrect procedure while on duty, impolite or improper language or other forms of improper behavior. Cases of misconduct concerning disproportionate use of force may – depending on the concrete circumstances – amount to a violation of the Penal Code. In some instances the alleged abuse of authority or disproportionate use of force is so blatant that it is evident that the complaint relates to a criminal offence right from the outset. In other cases the subsequent investigation into a complaint about police conduct may give rise to considerations as to whether the misconduct constituted a criminal offence. In a later section of this report Amnesty International describes a case from Kalundborg that touches on the question of the interface between misconduct and criminal offences in a police complaints case.

A complaint case on police misconduct (e.g. disproportionate use of force) is halted, if during the investigation it appears that there may be a reason for pressing criminal charges against a police officer for violence/assault under sections 244-246 of the Penal Code. If the criminal procedures are closed, the complaints case is reopened. Depending on the seriousness of the misconduct, the same incident can give rise to two decisions: one on the alleged criminal offence and subsequently a decision on the alleged misconduct.

The regional public prosecutor’s decision to waive pressing charges against a police officer must also be brought before the Police Complaints Board before entering into effect. The Board and the complainant can appeal the decision not to press charges to the Director of Public Prosecutions. However, as stated above, the Police Complaints Board has no decision-making powers.

Sanctions other than criminal charges

If the regional public prosecutor waives criminal charges thereby closing the criminal case, the complaint case once again becomes a conduct complaint and is handled by the regional public prosecutor and the Police Complaints Board.

In conduct complaints not resulting in criminal charges the regional public prosecutor can choose between the following reactions:

Case rejected – no misconduct has taken place
Regret expressed to the complainant - no criticism pronounced of police personnel or of the organization
Criticism of individual police officers’ conduct (three degrees of criticism: criticisable/very criticisable/highly criticisable)
Criticism of the place of duty/management/organization/structural flaws – no criticism of the individual police officer.

The restricted scope of the Police Complaints Board

Disciplinary cases, the decision on whether a given case of misconduct or conviction of a (minor) (traffic) felony should have disciplinary consequences, i.e. dismissal from the force, or a formal warning fall outside the scope of the Police Complaints Board. If disciplinary sanctions cannot be ruled out, the regional public prosecutor will submit the case to the officer’s place of duty where the commissioner of police (before the restructuring of the police districts in January 2006: the chief constable) will decide whether to initiate a disciplinary case.

Amnesty International considers that any police complaints mechanism should also cover the question of disciplinary measures against a police officer in consequence of a case of misconduct or abuse of power or criminal offences. It is crucial for the effectiveness of the complaints system that cases of misconduct or of criminal offences are invariably followed by disciplinary proceedings. To obtain the necessary transparency in the process the disciplinary body which decides on the disciplinary matters should be obliged to report back to the complaints mechanism which disciplinary actions have been taken as a consequence of the case.

Complaints about police decisions, i.e. police decisions to discontinue an investigation, not to press charges, or to bring police dogs to demonstrations or riots, also fall outside the scope of the Police Complaints Boards. The interface between complaints about conduct or criminal offences on the one hand and complaints about decision-making by the police on the other is blurred. For example, the decision to bring police dogs to demonstrations or riots is an operational decision, which can be addressed by lodging a complaint to the commissioner of police or ultimately challenged in a court of law, whereas the extent to which the dogs are used against people, “how much” the dogs are allowed to bite people, is a matter of police conduct and as such falls within the scope of the Police Complaints Boards. For the person involved, however, the sequence of events will be experienced as one incident that should be considered together.

However, Amnesty International finds that the distinction between conduct complaints and police operational decision complaints is impractical in a number of situations and recommends that the Police Complaints Boards should be empowered to handle complaints cases even when a complaint touches on the justification of a police operational decision. The chairman of the Police Complaints Board for Copenhagen, Frederiksberg, and Tårnby has informed Amnesty International that he would support extending the Boards’ scope so as to enable the Boards to handle complaints involving police operational decisions.

According to the Director of Public Prosecutions’ annual reports of 2005 of 2006, the 387 and 379 conduct complaints for 2005 and 2006 respectively were decided as follows:

Statistical information on the outcome of police “conduct” complaints	2005	2006
Complaints settled in police district (“minor cases”)	120	129
Complaints withdrawn	12	12
Complaints rejected as statute barred (time barred)	14	5
Complaints rejected as groundless (incl. cases where there are conflicting accounts of the incident (“2004 a draw”)	210	210
Regrets but no criticism (cases where the regional public prosecutor offered regrets to the complainant although no basis was found for criticising the police officer)	7	7
Grounds for criticism (criticism of the police officer’s conduct) (2005/06 6/6 criticisable, 2/1 very criticisable, 1/1 highly criticisable)	9	8
Organisational criticism (including criticism of general organizational procedures)	1	0
Other (includes cases that were closed due to complainant’s lack of response	14	8
Total	387	379

The regional public prosecutors’ decisions on allegations of criminal conduct against police personnel, including cases under the Administration of Justice Act section 1020a, subsection 2, in 2005/2006 were as follows:

	2005	2006
Complaints rejected	97 (10 traffic cases)	74 (4 traffic cases)
Investigation cancelled or criminal charges dropped	268 (68 traffic cases)	262 (72 traffic cases)
Grounds found for pressing charges	189 (176 traffic cases)	173 (162 traffic cases)
Incidents regretted/criticised, but no grounds found for pressing charges	10 (1 traffic cases)	7 (0 traffic case)
Others	15 (3 traffic cases)	11 (8 traffic cases)
Total	579 (259 traffic cases)	527 (246 traffic cases)

It appears from the above that out of 387 police conduct complaints in 2005 and 379 in 2006, 210/210 were rejected as groundless (unfounded), while nine and eight cases respectively resulted in criticism of the police officer in question.

As for the statistics regarding the 579 criminal cases in 2005 and 527 criminal cases in 2006 (including 259/246 traffic cases), it appears that 97/74 complaints were rejected, 268/262 cases were subsequently dropped (discontinued) after initial investigation and no charges brought. 13 non-traffic cases in 2005 and 11 non-traffic cases in 2006 gave rise to pressing charges and resulted in charges pressed/fines/warnings/withdrawal of charges in 2005 and 2006 respectively. All these diverse results are listed under one heading – grounds for pressing charges (see note 15).

To enhance the possibilities for public scrutiny of the practices of the regional public prosecutors the category “grounds found for pressing charges” should be subdivided into its separate components. A category that treats withdrawing charges and pressing charges together provides little useful information about the regional public prosecutors’ practices.

Amnesty International therefore welcomes the introduction in the Annual Report 2005 of statistics covering the outcome of the 13 cases listed under “grounds for pressing charges” and hopes that future Annual Reports will provide similar information on the outcome of the cases.^¹²

Assessment of evidence/burden of proof

The present system was introduced in 1996 to replace the severely criticized system of local boards. In comparison to the previous system, the present system has removed the most glaring inadequacies. However, lawyers have indicated to Amnesty International that in practice any improvements in relation to the former system have been modest. Some have told Amnesty International that they generally advise their clients against wasting time and effort on a complaint because in their estimation the chance of a favourable ruling is too slim.

The fact that the Police Complaints Boards concur with the regional public prosecutors’ recommendation in the vast majority of complaints cases should not necessarily be taken as statistical proof that the complaints are unfounded or unfair.

The chairman of the Police Complaints Board of Copenhagen, Frederiksberg and Tårnby has stated to Amnesty International that in cases, where there are (only) two conflicting accounts of the incident - the complainant claiming one thing and the police officer claiming the opposite - and no other evidence significantly supports the citizen against the police, the Boards invariably find themselves obliged to concur with the regional public prosecutor’s recommendation that “in view of the conflicting testimonies we have no grounds for ruling that a felony or misconduct has taken place.”^¹³

Rejecting the complaint (or a criminal charge) with reference to conflicting statements and the absence of evidence that misconduct has taken place is the norm when there is no conclusive corroborating evidence supporting the complaint. Therefore, a rejection does not always mean that the honesty or trustworthiness of the complainant has been questioned, or that there is doubt that this is the complainant’s sincere perception of the incident. What it fundamentally means is that there is insufficient evidence to support the complainant’s version of the incident against the denial of the police officer. Conflicting statements in police complaints cases will be the rule, the norm, rather than the exception. Furthermore, the relative weight of authority of a member of the public and a police officer is unequal.

Amnesty International considers that the answer is to ensure that the authorities assigned the task of investigating and deciding on complaints are uncompromisingly impartial and objective and thorough in their investigations and decision-making.

In Mikheyev v. Russia^¹⁴ the European Court of Human Rights stated that these standards (effectiveness, impartiality, fairness) do not constitute an obligation of result, (i.e. in terms of a decision that upholds the claim of the complainant against that of the State), but an obligation of means, i.e. an obligation concerning the standard of investigations. What should be tested in order to determine whether a national complaints system meets the requirements of “effective remedy” under Article 13 of the European Convention on Human Rights is not the result of the case, but the means. In Mikheyev v. Russia, the Court further stated that an “effective investigation” requires it to be thorough, expedient and independent.^¹⁵

The European Court of Human Rights has also stated that for an investigation under Article 2 to be effective, it is “necessary for the persons responsible for it and carrying it out to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence.”^¹⁶Moreover, it has also stated that effective investigation “means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions … they must take all reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence …” (Mikheyev v Russia, para.108) and the prosecuting authority must place a priority on finding potential supplementary evidence or other witnesses who are not themselves parties to the case.

The UN Committee against Torture, in its concluding recommendations after examining Denmark’s fifth periodic report on its implementation of the Convention against Torture, recommended that “all allegations of violations committed by law enforcement officials … are investigated promptly, independently and impartially”. It urged the government to expedite its ongoing review process, and to provide to the Committee detailed information on the results of this process.^¹⁷

The basic question to be addressed is whether the current system of investigation by regional public prosecutors fulfils the requirement under international standards for prompt, independent, effective and impartial investigations.

The regional public prosecutors’ role in the police complaints system in Denmark

Organization of the police and the public prosecution

“The structure of the Danish judicial system is unusual in that the prosecuting authority of first instance lies with the police, i.e. the police commissioner and the police lawyers. The police commissioner is consequently the head of police in the relevant police district and head prosecuting authority of first instance in the relevant judicial circuit. The prosecuting authority of second instance lies with the regional public prosecutors.”

The 1994 Committee’s view on the regional public prosecutors’ role

The problems arising from the lack of a clear-cut division between the police and the public prosecution at the local level are illustrated in the 1994 Committee Report (p. 148):

“The starting point for the investigation of complaints cases and criminal cases must be that this is the province of the regional public prosecutor’s legally trained staff consisting of a very small permanent staff and additionally of persons, who as part of their legal training are stationed with the regional public prosecutor and who after a two-year stint will return to the police.” [emphasis added]. Admittedly, lawyers do not have any formal education or training as far as police investigation is concerned, but through their work as police lawyers they obtain considerable experience with and knowledge of the rules that apply to police investigation, just as they gain experience conducting interrogations from their work as regional public prosecutors.”

Thus, currently, many of the lawyers working in the regional public prosecutor’s office are explicitly police lawyers, who after a two-year rota stint will return to the police.

The chairman of the Police Complaints Board for Copenhagen, Frederiksberg, and Tårnby, and the chairman of the Police Complaints Board for Fyn, Sydøstsjælland, Lolland, Falster, and Bornholm, have pointed out to Amnesty International that formally there are a certain number of built-in safeguards, in the sense that only the permanent staff of the regional public prosecutor’s office have the power to handle complaints against police officers^¹⁸. In practice, however, Amnesty International finds that the elaborate system of “rotation” within the Ministry of Justice undermines the safeguards^¹⁹.

The rota system, a requirement for all police lawyers as part of their training, is described on the Ministry of Justice’s website homepage. It appears from the homepage that all lawyers can look forward to working for three years in a police district as a police lawyer (prosecutor) and then “rotate” to the regional public prosecutor’s office for a two-year stint. (This external rotation may also entail placement at the Danish National Police, the Director of Public Prosecutions or the Ministry of Justice). After two years with the regional public prosecutor, the police lawyer returns to work as a prosecutor/police lawyer in a police district. All employees are summoned to a consultation with the Ministry of Justice after five and 10 years of employment. In the end the permanent legal staff of the regional public prosecutor, including the regional public prosecutor, the deputy regional public prosecutor, and the assistant regional public prosecutors have all at some point in their working lives worked as police lawyers.^²⁰

Amnesty International is concerned that the career path of all prosecutors – rotating between police districts and the regional public prosecutors’ offices – makes it hard for the regional public prosecutors to act with the required impartiality when investigating and deciding on police complaints and, even more so, difficult for the general public to perceive the regional public prosecutors as genuinely independent in their dealing with police complaints.

Deliberations of the government’s Vision Committee on separation of police and public prosecution (2005)

The Vision Committee (which included representatives of the Danish National Police, the Director of Public Prosecutions, police chief constables, the Police Federation, the Ministry of Justice and a broad range of representatives of other branches of societal life) was appointed by the government in 2003 and mandated to present recommendations for “the police of the future” on restructuring the police and the public prosecution. In its report of May 2005, the Vision Committee pointed out that the system whereby the local prosecuting authority forms an integral part of the police district is unknown in other Western European countries with the exception of Norway. In the other countries the police and the public prosecution are completely separate entities for reasons of principle.

The Vision Committee further states:

“In the opinion of the majority, the present system raises issues both in relation to fundamental considerations of the prosecuting authority’s independence and its assertiveness when dealing with the police, and consequently due process of law and supervision of the lawfulness of police practices [emphasis added], and in relation to the very principles of governance regarding the link between accountability and authority which form the basis for the committee’s proposal for a reform of police administration.”

The following are some excerpts from the Vision Committee’s report:

“Concerns regarding the principle of due process of law in relation to the prosecuting authority’s independence and legal control of the police have caused democratic states based on the rule of law to adopt as their customary practice that system whereby the prosecuting authority is organized as an independent authority that is absolutely separate from the police.

In Denmark, however, for historic reasons the system is organized in such a way that the chief police officer has a dual function in that he is head of both the local police and the local prosecuting authority…The Danish system consequently deviates from the countries with which we usually compare ourselves.” (p. 143)

“In the practical everyday life of the police districts there is an integral cooperation between the two authorities.” (p. 145)

“…As stated above, the particular Danish system in which the administration of the district police and the district public prosecution are merged raises concerns regarding the rule of law.” (p. 147)

“In addition to the general issue of the independence of the prosecuting authority and control of the lawfulness of police practices that it is the duty of the regional public prosecutor to exercise [emphasis added], the present system is not in accordance with the fundamental administrative principles that form the basis of the Vision Committee’s proposal for a coherent police reform…” (p.147)

“An obvious way of ensuring such a balance would be to separate the prosecuting authority in accordance with a scheme very like the Swedish one, for example. Such a separation of the prosecuting authority would constitute a major re-organization, and the costs, including efficiency loss, would largely outweigh the advantages gained when compared to the advantages that could be derived from a simpler organizational solution that does not entail absolute separation of the prosecuting authority.” (p.148)

Despite the majority of the Vision Committee appearing to fundamentally believe that the police and the prosecution authority should be absolutely separate on the institutional as well as the personal level based on concerns for the rule of law, the Committee seemed to settle, on cost-effectiveness grounds, for less than absolute separation^²¹.

Amnesty International recommends that regardless of any short-term practical operational advantages, the police and the structures and functions of the public prosecution should be separated on the organizational level. Such separation could go a long way to ensuring -- in perception as well as in practice -- the impartial and independent exercise of the public prosecution’s function to control the lawfulness of the police’s work. The organization also notes that the European Code of Police Ethics, in III.6, states: “There shall be a clear distinction between the role of the police and the prosecution, the judiciary and the correctional system; the police shall not have any controlling functions over these bodies.” Amnesty International considers that such separation would likely increase public confidence in the independence and fairness of the complaints system, particularly when coupled with implementation of the organization’s other recommendations.

Part two – case studies

The following five illustrative cases demonstrate different aspects of Amnesty International’s concerns regarding the lack of access for victims of police misconduct to an effective remedy so that they can exercise their rights to redress and reparation. The cases highlight the lack of separation between police and public prosecution; the perceived lack of transparency, impartiality and independence in the investigations carried out and in the decisions made by regional prosecutors.

Case No. 1. Randers

The following account and assessment of the case is based on the written judgment of Randers Municipal Court, the Court’s record of the testimonies of the involved parties, the regional public prosecutor’s presentation of the case, and on the police reports of the case. Furthermore, Amnesty International has interviewed the defence barrister who represented his clients in the criminal case as well as in the cases for compensation for unwarranted arrest and in the complaints case against a member of Randers Police. The information provided by the lawyer pertains to questions of the sequence of the incidents. Furthermore, Amnesty International had the opportunity to read the decisions of the regional prosecutor on the complaints cases.

In February 2003 a young man (A.) stepped outside a pub in Randers and shouted some degrading words. A. subsequently claimed that his words were directed at a friend (F), who was standing on the opposite side of the street by a shop.

A plain-clothes police officer (P), who was off-duty and out taking a walk with his girlfriend, came down the same street. He claimed that he thought that A.’s shouting was directed at him. So he walked up to A. and asked him to repeat what he had just said.

A. talked back and refused to repeat his words stating that the policeman had probably already heard him. The two quarrelled for a period of time, pushing and shoving. P claims that he showed A. his police badge at this moment. However, A. claims that he was not aware that P was a policeman until P made a telephone call and two police cars arrived to arrest him. A. was handcuffed and taken to the police station.

A. was remanded at the police station until the next day and subsequently charged with addressing an officer in a degrading or demeaning fashion under section 121 of the Penal Code.

It appears from the police reports that during the subsequent interrogation, A. claimed that he had been pushed around and struck by P. (A. subsequently submitted photographs showing minor bruises to his face and forehead and on the top of his head to substantiate his complaint. The uniformed police officers who were called all testified that they did not see P hit A. One of the officers stated that he heard a sound like a clenched fist hitting skin, but he had not seen anything, because he had his back turned to the place where P was holding A. What can be ascertained is that A. had soiled his trousers.)

After A. was placed in the police car, another guest at the pub, his friend B, came out of the pub to see what was going on, in time to see A. being driven away. B scowled at P. P yelled at B that he would remember his face in the future, and B talked back stating that he would also remember P’s face. P, who was about to resume his walk with his girlfriend, turned around and walked over to B because B called his girlfriend a prostitute.

The accounts of B and P contradict each other on the following incident.

According to B, P walked up to B, stepped on B’s toes on both feet and took a firm grip around B’s wrists. B repeatedly asked P to step off his toes and let go of his arms. At last B got his feet loose and stepped on P’s toes. The next thing he knew was that P gave him a forceful blow in the stomach causing him to lose his breath and bend over. B then straightened himself up and struck P hard across the face. This caused P to let go of B who then walked away. B subsequently claimed that it was not until after the exchange of blows that he was made aware by a bystander that P was a police officer.

P testified in Randers court in December 2003 that B struck P in the face; but P denied having stepped on B’s toes, holding his wrists or hitting him in the stomach.

Apart from A., B, and P, Randers Court also heard testimony from the police officers called in by P, P’s girlfriend, A.’s friend F who had been on the other side of the street, and the bartender of the pub.

P’s girlfriend confirmed P’s account of the incident. The police officers testified that P had entered the police station with a big red mark on his cheek and jaw and down one side of his neck, and that P had asked some of his colleagues to come with him to find and arrest B, stating that B had hit him in the face. (P and his colleagues did not succeed in finding B that day, but he was arrested at a later date and charged with interference (violence) with an officer in the performance of his duties and verbal assault, under sections 119 and 121 of the Penal Code, respectively.)

A.’s friend F had witnessed the entire incident and supported B’s testimony stating that he saw P hit B in the stomach, and that B retaliated by hitting P in the face. It further appears that F gave testimony supporting A.’s account of the initial incident, when A. yelled at him and called him names from outside the pub, and how P responded to A.’s yelling.

The case went to court in December 2003 approximately 10 months after the incident. When the trial began the case took a surprising turn in that A.’s and B’s defence lawyer lodged a complaint in court against P for violence/unnecessary force, i.e. using excessive force against A. during his arrest, and hitting B in the stomach after A.’s arrest in violation of section 244 of the Penal Code.

It appears from the case file that during the criminal investigation against them both A. and B testified to Randers Police that P struck them, but in its consideration of the case the district public prosecution failed to question P about the allegation that he had hit them, with the rights and privileges of a suspect. It was not until the defence lawyer lodged the formal complaint about the alleged incident in Randers Court during the criminal action against A and B that anything happened.

The court was then adjourned because some of the police witnesses had not been notified to appear in court to give evidence. In a court session in May 2004 the case was further postponed with a view to interrogating the police officers, the friend F, and others.

When the case was resumed in August 2004, the prosecutor (from Randers Police) claimed that, in view of new information (reasonable doubt as to A.’s and B’s guilt and reasonable doubt as to whether officer P had been guilty of misconduct), A. and B should be acquitted of all charges. The Randers Court gave judgment in accordance with the prosecution’s plea. (In doing so, the written judgment merely contains the testimonies given in court; the judge does not state his assessment of the accounts of the incident; nor does the public prosecution indicate the nature of the new information.)

A. and B’s lawyer then filed a complaint with the Director of Public Prosecutions under the Administration of Justice Act for unjustified arrest, for the fact that the case had been unreasonably lengthy for his clients, and that the police and the prosecution had not at any time between February 2003 and the court hearing in December 2003 taken any measures to investigate A.’s and B’s claims of ill-treatment by P, but instead completely ignored A.’s and B’s claims (during the initial interrogation at Randers Police) until the complaint was filed in court in December 2003.

The Director of Public Prosecutions rejected the compensation claim for unwarranted arrest, stating that A. and B had caused the arrests themselves and furthermore that P had committed no errors which could give rise to questions of compensation. Lastly the Director of Public Prosecutions stated that neither A. nor B had lodged formal complaints against P until the court session in December 2003.

A’s and B’s lawyer then lodged a complaint against P with the regional public prosecutor of Northern Jutland for unwarranted and excessive use of force (ill-treatment) against A. and B.

In March 2005 the regional public prosecutor of Northern Jutland rejected both complaints. As for A., the regional public prosecutor stated that in view of P’s statements and that of his girlfriend and the bartender, the regional public prosecutor did not find sufficient grounds to reject P’s allegation that A. had yelled at him and called him names. As to whether P had struck A. and attempted to kick him, the regional public prosecutor found no evidence that such actions had taken place. In doing so, the regional public prosecutor attached particular importance to the fact the P had denied striking or kicking A. The regional public prosecutor made specific reference to the fact that one of the police officers who had been called in by P had been unable to ascertain whether a certain movement by P was an act of self-defence or a blow, just as the police officer who thought he heard the sound of a clenched fist against skin had not seen anything because he had had his back turned to the incident. On this basis the regional public prosecutor concluded that P had not applied disproportionate force and that A. had attempted to escape.

As to whether P had struck B in the stomach, the regional public prosecutor rejected the complaint stating that in view of the many conflicting statements about the incident she had not found evidence to support the allegation.

Thus, A. and B were acquitted, but no errors were found to have been committed during their arrest. No criticism of P’s action was pronounced, nor did the regional public prosecutor offer an apology to A. and B.

Amnesty International considers that the decisions and the reasoning on B’s criminal and complaints case raise questions about the investigation and decision-making of the prosecution authorities. The regional public prosecutor rejected the complaint against P on the grounds of insufficient evidence that P had struck B in the stomach. But at the same time the Randers municipal Court judgment acquitted B of violence against a police officer despite B testifying in court that he did so after P had struck him in the stomach. F’s testimony was in accordance with B’s account of the incident. P’s colleagues have all testified that P entered the police station with a large red mark on his face. Nevertheless the public prosecution requested that B be acquitted of the charge.

Amnesty International considers that the case of A. and B raises the question of whether the district public prosecution at first instance (formally the police chief constable of Randers Police) handled it in a thorough and impartial manner. It illustrates the fundamental issue highlighted in the government’s Vision Committee’s report: the absence of a clear division between the police and the public prosecuting authority on the local level, the chief constables’ (now: the police commissioners’) dual role as head of the police district and head of the local prosecuting authority. The decisions of the district public prosecution and of the regional public prosecutor for Northern Jutland respectively appear to be contradictory, and the case further raises concern about the perceived lack of impartiality and objectivity in the public prosecutors’ investigation of the complaints.

Case No. 2. Glostrup

The following case demonstrates a concern about statements made by prosecution authorities before an investigation is completed, thereby casting doubt on the impartiality and independence of the ongoing investigation.

On 9 January 2006, the papers quoted the regional public prosecutor for Zealand as stating that the Glostrup police had acted correctly when deciding to shoot a mentally disturbed man making threats with a knife on 8 January 2006.

The newspaper Politiken quoted the regional public prosecutor of Zealand as saying:

“Everything indicates that the man caused his own death. He had stabbed himself in the abdomen, as well as in the chest and throat. The police shot at him to stop him from inflicting injuries on himself.” Similar accounts of the incident were given in Urban, Berlingske Tidende, Ritzau’s Bureau and other newspapers.”

Politiken continues:

“Regional public prosecutor XX does not know whether the man was known to the police, but he does know that the man had a psychiatric record. In the opinion of the regional public prosecutor this is more a case of personal tragedy than of the police force’s use of force; ‘While I am unable to say anything definite, this case looks like yet another example of the mentally ill being the cause of unfortunate situations often harming themselves in the process, another example of how the mentally ill are treated in our society,’ XX says. Today central police officers will be interrogated about the course of events, and there will a post-mortem on the deceased to determine the cause of death.”

Amnesty International is concerned that the reported statement of the regional public prosecutor, made before the investigation was concluded was premature and may have prejudiced the course of the investigation and handling of this case. It appears that an autopsy on the deceased had not yet been performed. In the perception of the public, the regional public prosecutor had already indicated the outcome of the future investigation into the case.

On 18 January 2006 an article in Politiken stated that the post-mortem had shown that the victim had bled to death as a result of gunshots fired by the police. He had been shot in main arteries in both legs.

The Politiken article stated: “The mentally ill man was shot in the legs when a female officer tried to prevent him from committing suicide by using her gun. ‘This tragic case may have consequences. But you have to ask yourself if his own action would have resulted in death, too, had shots not been fired,’ states regional public prosecutor XX .”

It further appeared from the article that the Director of Public Prosecutions would become involved in the case with a view to studying what could generally be learned from the situation. Politiken quoted the regional public prosecutor as stating:

“The course of events gives rise to several questions as to how mentally ill persons should be treated when they attempt to inflict injuries on themselves or others. He may have been under the influence of drugs, pills, or alcohol. He did not react when the police officers beat him with a truncheon, nor did he pay any attention when a dog bit him in the arm.”

Compared with the regional public prosecutor’s initial statement, in which on the whole he concluded that the man had presumably died of injuries that he had inflicted on himself, the later statement indicated that the case was far less obvious and straightforward. But even after the regional public prosecutor must have realized that his presentation of the course of events on 9 January was premature and insufficiently substantiated, he maintained his original position that no errors had been committed, presenting the hypothesis that the man might have stabbed himself to death had he not been shot.

Amnesty International is concerned that the statement of the regional public prosecutor before the conclusion of the investigation may have undermined the perception of an impartial investigation and public confidence in the fairness and effectiveness of the police complaints system with regard to the prosecuting authority’s role in investigating the lawfulness of police actions.

Case No. 3. Kalundborg

The following case illustrates Amnesty International’s concerns that the police complaints system in Denmark has not provided an effective remedy against human rights violations, including an independent, impartial and thorough investigation.

The case also illustrated an apparent gap between the international human rights treaties and guidelines on the use of force and the practices of the Danish prosecuting authorities.

In Kalundborg in December 2004 a police officer held a man down by stepping on his neck while the man in question lay face down on his stomach with his hands handcuffed behind his back. A man passing by witnessed the incident and recorded the scene with his mobile phone. The recording was placed on the newspaper Ekstrabladet’s website homepage where it gave rise to alarm and indignation.

In the 12-second recording the officer can be seen treading on the man’s neck, while he is lying on the ground, thrashing his legs and crying out hoarsely (as if struggling to breathe). “Have you had enough yet? Have you? Have you finished?” the officer yells in the recording. When the young man cries out for help to the persons standing around watching the incident, the police officer can be seen to step on