Instalación GNU RADIO

Question: A re grounds o f justification, excuse and

m itigation, including m istake o f law, taken into consid­ eration and, i f so, to what extent?

Danish legal theory makes no distinction between justification and excuse. However, if one regards current law it is obvious that the distinction, in all essentials, corresponds to the German one (‘Rechts- fertigung und Entschuldigung’). One may therefore

note that the distinction could be applied also within

the Danish system. In Denmark one generally uses the term ‘ objective grounds for exemption from liability ’ or ‘objective defences’.

Articles 13 and 14 of the Criminal Code contain special provisions on self-defence (‘N otw ehr’), the authorities’ enforcement of the law, and acts of neces­ sity. These provisions have never been much used under Danish law.

It is difficult to imagine that self-defence should play

any major role within administrative criminal law.

On the other hand necessity (‘N otstand’) might very

well be of particularly great significance. In case of

offences against administrative criminal law the goods sacrificed will traditionally be of much smaller value than where the ‘ordinary’ criminal law is violated, and one might therefore expect that necessity would

occur more frequently in this area. This, however, has not turned out to be the case in practice. Also in this respect the courts are particularly restrictive. It has been considered of vital importance that the general purpose of legal provisions should not be jeopardized through the application of a provision on necessity. As a consequence, for instance, persons in bankruptcy have been prevented from invoking necessity as an excuse for transgression of the legislation on accounts.

In situations where it has been possible to envisage a special need, supplementary special rules have fre­ quently been made within special criminal law. There is a presumption that such special rules are meant only for the purpose of expanding and not of dimin­ ishing the field of application of the general rule. Such special provisions may be more readily applied in judicial practice than the general rules o f the Criminal Code.

As an example, one may mention Article 51 of the Safety and Health at W ork Act: ‘Where the forces of nature, accidents, breakdown of machinery, or similar unforeseen circumstances disturb or have disturbed the regular running o f a business the provisions in ... (on periods of rest) may be deviated from to the extent necessary until regular operation is resumed Within traffic law we find, for instance, rules which permit emergency vehicles not to abide by the rules on speed limits, etc. The courts have, however, been reluctant to apply the general defence o f necessity to a drunken driver who assists in providing help or who transports victims for treatment.

On the basis of similar considerations but with condi­

tions not being quite as strict, negotiorium gestio may

be attributed a similar relevance.

Impossibility does exclude criminal liability. In prac­ tice this will be of particular importance within the area of strict liability.

A conflict between two sets o f injunctions or orders (‘ Pflichtenkollision ’) which cannot both be abided by is solved, first and foremost, by means of an interpre­ tation of the provisions involved. If this does not yield a solution, the view will commonly be taken that the choice made by the person in question in the conflict situation should not be an unreasonable one. How­ ever, one cannot assume that concrete situations in Denmark should be solved by weighing the interests involved (‘ Giiterabwagung ’).

While necessity and self-defence have been only of limited significance within administrative criminal law, the issue regarding the limits of the enforcement o f the law (‘Handeln auf Grund von Amtsrechten’) has been of somewhat greater significance. The gen­ eral rule on self-defence is found in Article 13(1) and (2) of the Criminal Code. The most important condi­ tion stipulated by Article 13(1) is to the effect that the act committed in self-defence shall be ‘necessary’ and

that it shall not ‘manifestly exceed what is reason­ able’. Article 13(3) reads as follows: ‘Similar rules shall apply to acts necessary to enforce lawful orders in a lawful manner, to carry out a lawful arrest or to prevent the escape of a prisoner or a person commit­ ted to an institution’.

The assessment whether the act was reasonable is based on the consideration whether there exists a reasonable proportion between the importance of enforcing the law and the force used. While the injury inflicted by the force used will frequently be physical and obvious, the injury stemming from a lack of enforcement is frequently a more complex affair. Among the elements to be taken into account are not only due regard to the authority of legal order but also the wish to deter more or less imminent offences. A first condition consists in the use of force not being more intensive than is called for. In certain situations this may mean that steps of a less intensive nature need to be tried before more intensive ones are applied. A second element in assessing reasonableness consists in considering whether the least intensive of sufficient means are excessive, having particular regard to the offence (or offences) involved.

Article 13(3) cannot be directly applied should an authority intervene against an external third party or provoke a risk to such parties or to their property. If, on the other hand, an intervention is substantiated by the rule of necessity (Article 14 of the Criminal Code), conditions become much stricter. The legal position on this point, however, remains nebulous. One can hardly say today with any degree of reasonable cer­ tainty to what extent the courts will demand that the strict conditions of Article 14 shall be applied or whether there may be found a third intermediate criterion.

A legal order may originate from a court or from the administration, including the enforcing authority proper. It may be expressed in writing, orally, by signs, etc. It must furthermore be of a type which may legally be enforced by the authority in question through immediate use o f force.

Within ordinary criminal law the most important ground for release from liability is undoubtly consent (‘Einwilligung’). There is no general statutory provi­ sion on this, so the rule has to be based on ‘ legal and cultural traditions’. In the field o f administrative criminal law the interest to protect is, however, only rarely attached to an individual person (the object of attack). Where the purpose of a provision is not limited to the protection of an individual person’s concrete interest, but aims at protecting the interests of society at large, an individual person can obviously not give exonerating consent.

It is, furthermore, assumed that consent cannot exclude criminal liability if the act involved is directed at the life or health of the victim or if these goods are exposed to a risk. Consequently, liability under the

Health and Safety at Work Act can normally not be excluded has the consent of the workers exposed. Management is, for instance, not released from liabil­ ity by the fact that some workers on a roof have neglected to use the life-lines which the firms has actually made available.

Similar rules apply — at least to some extent — even if merely ‘steps of welfare’ are applied. Thus a 1978 (unreported) judgment of a High Court convicted a business operating a defective trailer shed. The busi­ ness, in vain, pleaded that instead the workers had been paid a compensation for the defects.

Under Danish law there is also to some extent a tendency to disregard consent given by persons who in general are in a weak position. This means, for instance, that the consent o f a worker to departures from the rules regarding payment of holiday allow­ ance has no exonerating effect.

As a main rule an agreement on delegation of criminal liability has no effect (see below). In special areas there may, however, exist a special authority on this. Under Article 23 of the Safety and Health at Work Act, an employer may thus delegate his liability to operations managers, works managers, or other qual­ ified managerial staff.

An order has no exonerating effect. This is so within public administration as well as in private business. Certain aspects o f the concept of error of law is dealt with in the reply to the question in section 3.3. A misunderstanding according to which certain circum­ stances, for instance a dangerous situation, fall within the scope of a statutory provision on exonera­

tion, does exclude intent. It constitutes an error fa cti.

A misunderstanding of the rules or their limits is, however, irrelevant if the actual situation has been

correctly perceived. This constitutes an error iuris.

Even if one of the reasons for excluding punishment which have been mentioned above is not at hand in a concrete situation, the circumstances in question may become relevant in other contexts, not least in relation to sentencing. There are, however, also rules on mitigation which do not correspond to such grounds. M ost of the rules on reduction of punishment or mitigating circumstances are optional.

The most comprehensive rule is found in Article 84 of the Criminal Code, which provides that punishment may be reduced:

(1) if a person has exceeded self-defence or necessity but not in case of exceeding lawful enforcement of the law (in which case an analogy may, however, be applicable);

(2) the perpetrator is lees than 18 years of age (for this group imprisonment may not exceed eight years);

(3) ignorantia iuris; (4) provocation;

(5) if a person was induced to commit the deed by virtue of his position of dependence on some other person or in the fact of a threat o f substan­ tial injury;

(6) if the perpetrator has averted the danger; (7) if the damage has voluntarily been restored; (8) if prevention has been attempted in vain; and (9) if the perpetrator has given himself up.

In the circumstances referred to at points (1) to (6), the punishment may, in further mitigating circum­ stances, be wholly remitted (see Article 4(2)).

Besides the provisions of Article 84 of the Criminal Code, a number of similar rules are found throughout the system. In the present context, we merely list the following examples from the Criminal Code:

Article 10(2): If the act was committed within the territory of a foreign State, the punishment may not be more severe than that provided for the law o f that State;

Article 10(b): The penalty is reduced in proportion to the extent to which foreign punishment has been served;

Article 21(2): The attempt gives evidence of little strength or persistence in the criminal intention; Article 23: Various types of complicity;

Article 85: The offender’s mental state or the cir­ cumstances of the act;

Article 87: In case the perpetrator has been disqual­ ified from his job.