Question: What criteria are used to determine the
penalties by the authority com petent to impose them? Under current Danish law there are hardly any penal ties fixed by statutes. The closest one gets to this is the parking levy previously referred to.
The seriousness of the offence has been decisive for its criminal limits (‘Strafrahm en’), which Parliament has established in connection with criminalizing the act or omission. As a characteristic feature o f Danish crimi nal law the limits are very broad. The Standing Criminal Law Commission has in principle taken the position that the minimum penalty should always be very low. This has been accepted by Parliament for many years. Therefore, very few crimes have a mini mum penalty exceeding 30 days’ imprisonment. By far, most crimes prescribe merely a fine as the mini mum penalty which means that in theory it is always possible to impose a fine of 25 ore (ECU 0.03) even where there are no special circumstances justifying a reduction of punishment.
The maximum penalty will normally be prescribed in the case o f possible imprisonment; only very few provisions allow imprisonment for life. Since 1930 there has been no adjustment o f the maximum for a great number o f crimes; during this period a reduction of the traditionally applied penalties has taken place in most areas (apart from traffic in narcotics and, to some extent, crimes of violence and tax fraud). Con sequently, there is often a wide gap between the level o f penalties used in practice and the maxima formerly provided by legislation.
In the case of simple detention, a maximum is pres cribed only rarely, which means that the maximum period becomes six months.
No provisions prescribe any maximum for fines. It follows that the tendency of detailed specifications in EC law contrasts strongly with the legislative tradition and practice in Danish law.
It appears from the foregoing that only to a limited extent has Parliament limited the courts’ possibilities of adjusting a penalty in a concrete situation in accordance with a concrete assessment. Actual sen tencing in specific cases within the limit provided by the act is governed by Article 80 of the Criminal Code which contains the general provision: ‘ In determining the penalty, account shall be taken of the gravity of the offence and of information concerning the offen der’s character, including his general personal and social circumstances, his conduct before and after the offence and his motives in committing i t ’. This rule applies also to special acts (see Article 2 of the Criminal Code). One may say that this rule is univer sally applicable since penalties which have been fixed by administrative authorities may always be appealed against to the courts by the offender and the courts in such situations are obliged to use the principle of Article 80 in fixing the penalty.
Article 80 of the Criminal Code prescribes both objective and subjective considerations to be taken into account in sentencing. The subjective elements may be subdivided into various categories.
Within general criminal law it is of major importance whether the offender has committed a first or a
repeated offence. This is relevant, among other things, in fixing the duration o f imprisonment and when deciding whether a suspended sentence will suffice. These background elements play, however, a fairly subordinate role within administrative criminal law. One may, however, to some extent observe that penalties rise in severity each time the person in question violates the rule. This applies for instance to driving under the influence of alcohol or driving after one’s driving-licence has been withdrawn. As another example, one may mention failure to make payments to the Holiday Fund. On the first occasion, a fine of D K R 500 (ECU 63) per quarter is imposed; the second time the fine is D K R 750 (ECU 95) per quarter; and the third time D K 1 000 (ECU 126) per quarter (statement No 7 of 22 October 1986 of the Attorney-General). Prior penalties may also be deci sive in relation to disqualification and in deciding whether confiscation is appropriate, for instance, where beer is sold outside normal opening hours (Supreme Court judgment reported in UfR 1982, p. 998).
However, these examples reflect exceptions from the rules rather than the rule itself. In one of his state ments (No 5 of 30 October 1984) the Attorney- General had this to say on the fixing of fines in police cases: ‘Normally, fines should be fixed at the same amount in the case of repeated violations as where a violation takes place for the first time, apart from situations where the police has knowledge of such earlier violations that a definite need is felt to take the recidivism into account in fixing the fine or where something different has explicitly been described’. The general social background of the perpetrator is likewise o f major importance within the general crim inal law and particularly when choosing between an immediate and a suspended custodial sentence. Admittedly Danish law did away with a great number o f special reactions early in the 1970s because there was no longer any confidence in the efficiency and justification of the treatment system. As for suspended sentences with supervision imposed for theft and the like, this point of view has not carried much weight in legislation and in judicial practice. Within special criminal law there has been particular debate on the question whether greater use should be made of suspended sentences with a condition o f a cure for alcoholism attached in dealing with alcoholics being guilty of drunken driving; but even within such an area it has been difficult to catch the ear of the courts.
Within administrative criminal law it is, however, only rarely that elements of social background other than the perpetrator’s financial situation are taken into account.
Under Danish law there are two different types of fines: daily fines and lump-sum fines.
Daily fines were introduced in 1939 for the purpose of making fines felt equally by persons in different financial situations. They are, however, applicable only where fines are fixed by the courts and only for offences against the Criminal Code. Consequently, they rarely appear within the areas which one would naturally classify as coming under administrative criminal law.
Under the general rules o f the Criminal Code the financial situation is a decisive element in fixing a fine. ‘In fixing fines other than daily fines, special consid eration shall be given, within the limits relative to the nature of the offence and to the circumstances refer red to in Article 80 of this Act, to the offender’s capacity to pay ’ (see Article 51(3) of the Criminal Code). This rule is, for instance applied in relation to drunken driving, where the traditional fine is fixed at D K R 1 000 (ECU 125) per D K R 25 000 (ECU 3 100) o f yearly gross income — with the proviso, however, that D K R 40 000 (ECU 5 000) and D K R 2 000 (ECU 250) constitute the maximum and minimum fines respectively.
As will appear from what follows, a certain standar dization of fines has, however, taken place so that judicial practice attaches very small importance to this central element. It seems justified to say that in general it would be highly unusual if the standardized fines were increased even if the offender was a partic ularly wealthy person. On the other hand, the Supreme Court has in certain sentences of principle expressed the view that a person belonging to a group having generally poor financial conditions shall have a smaller fine, and that an adjustment o f the fine to the offender’s financial situation may be implemented through simple standardized delimitations of various categories of persons and simple standardized reduc tions of the size o f the fine. Two o f the Supreme Court sentences involved a student and an old-age pensioner upon whom the court imposed a fine o f half the traditional amount. On the other hand, a person in receipt of a disability pension, having a certain capital and income, as well as an apprentice who also worked as a film operator, were sentenced to pay the traditional fine although they actually belonged to social groupings which have generally poor conditions (see the weekly publication on the administration of justice, 1976, pp. 104 and 106).
In certain areas the mens area is of major importance.
Thus one rarely comes across anything more than a very brief custodial sentence unless the offender has acted with intention. In practice exceptions are made almost exclusively in the case o f intentional violence
resulting in death or bodily injury as a negligent consequence and in the case o f drunken driving resulting in death or bodily injury as a negligent consequence.
Deprivation of liberty on the basis of strict liability is authorized only in one particular legal area: the liability of a media editor for anonymous articles (see the Press Act, (No 533) of 18 August 1986). In principle, this rule is a very dangerous one but it is well justified in concrete terms. A Media Bill was recently presented which maintains this special rule. In the committee preparing the bill, daily newspapers, journals, radio, television, and journalists were heavily represented, and on this point the committee unani mously agreed on continuation of the existing sys tem.
As for fines the degree of mens rea has a bearing upon
the size of the fine in certain legal areas. This is particularly so in relation to tax evasion. In connec tion with grossly negligent breaches of tax law the fine consists of an amount equal to the amount o f tax evaded. In connection with intentional tax fraud, it is twice as large.
On the other hand, the Supreme Court has this to say on a fine for speeding: ‘It has been determined that the violation on the part of the accused was negligent, but as stated by the prosecution it is not considered appropriate — apart from specific cases — to consider the subjective conditions o f the accessed when mea suring out the punishment’ (see UfR 1979, p. 758). This is clearly the main rule in practice.
It appears from Article 51 o f the Criminal Code that in fixing a daily fine it shall be taken into account whether the perpetrator ‘intended to obtain a consid erable economic gain for himself or another’. The relevance of the motive to obtain an economic gain has also been stressed in various recent acts.
According to Article 83(2) of the Environmental Protection Act (No 85 of 8 M arch 1985) deprivation o f liberty may be imposed if the violation has been committed intentionally or through gross negligence, and if the violation has resulted in or has been made for the purpose of obtaining an economic gain for the offender or others, including a gain through savings. Within administrative criminal law, other subjective elements are of only minor significance.
Besides the subjective elements, Article 80 of the Criminal Code stresses the relevance of the gravity of the offence. Whereas the maximum and minimum penalties laid down for each offence reflect the general gravity of the crime, Article 80 aims at taking into account the concrete gravity. Since the subjective elements — as previously mentioned — are of very limited significance within administrative criminal law, these elements become the decisive ones in prac tice.
A great number of petty crimes have been included in a list which the Attorney-General has distributed to subordinate prosecuting authorities (most recently, statement No 5 of 30 October 1984). The list indicates what penalty should be imposed. It is, however, stressed that the rates merely provide guidance for the prosecuting authority and they obviously cannot bind the courts. In actual fact, they are generally used by
the courts; should this not be the case the list is quickly adjusted to judicial practice. The rates are adjusted from time to time (most recently by state ment No 4 of 28 April 1988).
Some of these rates are of a very definite size; this applies for instance to violations o f the prohibition against hanging on to a vehicle, playing in the road, etc. (D K R 150/ECU 20), pedestrians’ failure to abide by a traffic signal (D K R 150/ECU 20); failure to use a cycle path (D K R 200/ECU 25); lacking approval of an apprentice’s contract (D K R 500/ECU 60); and
immigration — evading the passport control
(D K R 600/ECU 75).
Other rates are graduated on the basis of objective criteria of different kinds.
A fine for speeding depends on the excess speed; up to 20 km/hour, D K R 300 (ECU 40); 20 to 25 km/hour, D K R 450 (ECU 60); 25 to 30 km/hour, D K R 600 (ECU 75), 30 to 35 km/hour D K R 800 (ECU 100) etc. (see the previously mentioned statements by the Attorney-General).
The fine for illegally placing hens in cages for egg- laying is fixed on the basis of the duration and the number of hens but not on the basis o f the financial result (Supreme Court judgment reported in the weekly publication on the administration o f justice, 1985, pp. 403 and 406, and statement No 3 of 23 April 1985 by the Attorney-General).
Shoplifting to the amount of D K R 300 to 1 000 (ECU 40 to 125) results in a fine amounting to twice the value of the stolen goods (statement No 5 of 28 April 1988 by the Attorney-General).
In general, it has constantly been stressed in the Danish debate during recent years that fines should be fixed at such an amount that crime does not pay. The nature of a fine as a substitute for confiscation is illustrated by Article 83(5) of the Environmental Protection Act which provides: ‘Where proceeds obtained by violating this act or orders issued in accordance with the act are not confiscated, the fixing of a fine, including a supplementary fine, shall in particular take into account the size of the financial benefit which has been achieved or which is intended’.
The relevance of the proceeds has also been standar dized in judicial practice. In leading cases regarding delayed payment o f withholding tax, the Supreme Court established that as a general rule the fine shall be fixed at a current interest rate of 2 % per month of the tax due at any given time (UfR 72, pp. 881, 882 and 884). Compared with the level of interest at that time, this rate corresponded to twice the normal rate of interest paid on bank credit. The rate has been maintained since without fluctuations in interest rates having resulted in any changes.