MINISTRY OF fOREIGN AFFAIRS OF [)ENMARK

The Scope and Application of the Principle of Universal Jurisdiction

In 1:csponse to the invitation made b) the Secretary-General following the adoption

l)f

General

Assembly resolution 64/117 of 16 December 2009 entitled "The Scope and Application of the

Principle of Universal Jurisdiction", the Kingdom of Denmark is pleased to provide the following information regarding universal jurisdiction in Danish law.

1. Introduction
111.e following provides a general summary of the Danish rules on universal jurisdiction. For the putpose of this summary, universal jurisdiction is understood to encompass jurisdiction irrespective of where the act in question was committed, and the nationality of the perpetrator and the victim. It should be noted, that under existing Danish law, universal jurisdiction may, as

a general rule, only be exercised when the perpetrator is present in Denmark at
formal legal proceedings are initiated.

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time when

2. The Danish Criminal Code,
Under section 8, § 1, no. 5, of the Danish Criminal Code, cf (consolidation) ACI: no. 1034 of
29 October 2009, Denmark has jurisdiction when an act is covered by an international

provision under which Denmark is obliged

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have criminal jurisdiction. 1.11.i5 provision aims at

implementing Denmark's treaty obligations regarding inter alia war crimes and other serious

climes under internationalIaw. In addition, the provision establishes Danish jurisdiction where
Denmark m.ay be obliged to have criminal jurisdictica under UN Security Council resolutions and decisions
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directives adopted by the Council of the European Union.

Section 8, § 1, no. 6, of the Criminal Code establishes r:::'anish jurisdiction where extradition of a person for prosecution
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another country is rejected, and the act, provided it has been

committed within the territory of a foreign state, is punishable according to the law of the state in which it was committed (dual criminality), and the act is punishable under Danish law and may be sanctioned with a sentence longer than imprisonment for. one year. Section 8a of the Danish Criminal Code provides that an act committed outside the territory of the Danish State is subject to Danish criminal jurisoiction where the act is cove red by the Starute of the International Criminal court, provided that the act has been committed by a person who is a Danish national or bas his abode
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residence in Denmark, or by a per~lon who

is present in Denmark at the rime when charges are tats·..d.
Under. section 8b of the Danish Criminal Code, an act coveted by section 183a of the Act (the

unlawful takeover of an aircraft or a ship), when committed outside the territory of the Danish state, is subject to Danish criminal jurisdiction, provided that the act has been committed by a person who is a Danish national or has his abode or residence in Denmark, or by a pe3:son who is present in Denmark at the rime when formal legal proceedings are initiated. Under section 12 of the Danish Criminal Code, the exercise of jurisdiction with reference
to

the above-mentioned provisions is limited by applicable international law. This provision refers to all relevant rules of international law, including immunity of state officials and diplomatic immunity. Thereby, customary rules on immunity, as well as treacles on immunity, to which Denmark is a party, may exclude the exercise of Danish jurisdiction where the Danish Criminal Code would otherwise provide for such jurisdiction. Furthermore, in cases of concurrent jurisdiction, the legitimate interes t of Denmark in exercising jurisdiction may be balanced against
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interest of other states in retaining (exclusive) jurisdiction. The drafting of section

12 provides for the consideration of all relevant faces of the case as well as evidence of the state of international law at the rime the specific jurisdictional issue arises.

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3. Danish Administration of Justice Act
Sections 721-722 of the Danish Administratiou ofJustice Act, cf. (consolidation) Aa no. 1053 of 29 October 2009, refer to the prosecutorial discretion of the Danish Public Prosecutor to assess whether an indictment should or should not be initiated. Such an assessment includes consideration of whether a successful prosecution will entail disproportionate difficulties, costs, or time constraints. Moreover, indictment may not be initiated if mitigating circumstances would make the indictment unreasonable. These principles also apply
to

situationn where an

indictment has becn initiated b\lt the evidence and circumstances prove to

cause

disproportionate difficulties as described above. In these situations the Public Prosecutor may chose to discontinue the case
at

his discretion.

4. Judicial practice
The following Supreme Court Case from 1995 may be mentioned as an example of a case where Denmark has exercised jurisdiction under section 8, § I., no. 5} of the Danish Criminal Code (cf case No. U1995.838H):
The defendant, who was preserlt ill Denmark when the charges against him were raised, was accused of having committed sedous violence against fellow inmates in a Croatian camp for war prisoners, in which the defendant was exerci~ing limited authority. The acts Were held to be punishable under the third as well as the: fourth of the Geneva Conventions. Thus, the
violations were subject to Danish jurisdiction under section 8 (5) of the Criminal Code (as

Denmark was obliged under the relevant conventions to have criminal jurisdiction). The defendant W:lS sentenced to 8 years imprisonment and expelled from Denmnrk permanently.

In another case from 1998, the Prosecutor General considered the scope of the abovementioned section B (5) of the Danish Criminal Code. A group of Chilean citizens, who were resident ill Denmark, had reported former president of Chile, A.UgLlsW Pinochet, to the Danish police accusing him of having ordered, designed, or upheld a regime, in which the applicants had been exposed to arrest, torture and degrading treatment in Chile during the .years . At the time of the police notification, Augusto Pinochet was a British resident,
1973~88.

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After thorough consideration of, inter ''llia, the preparato.t:y works of the Danish Criminal Code's section 8 (5) the Prosecutor General concluded that Denmark lacked criminal jurisdiction in the specific case, due to the fact that the alleged pe.tpetrator was not present in Denmark at the time when formal legal proceedings would otherwise be initiated against him. This understanding of section 8 (5) was later upheld by the Danish Ministry of Justice.

5. Applicable treaties
Denmark is a patty to numerous treaties which embody the principle of universal jurisdiction. A list of those treaties is very extensive and will be provided at a later Stage.

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