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Question: W hat substantive rules apply to the involve­

ment o f persons in violations and a ttem pted viola­ tions?

This question includes the rules under Danish law both on aiding and abetting and on attempt.

3.6.1. Aiding and abetting

M ost criminal provisions are worded in such a way as to refer to the acts of individual persons. Arti­ cle 23(1)(1) o f the Criminal Code contains the main rule on situations where several persons commit a crime jointly and runs as follows: ‘The penalty in respect o f an offence shall apply to any person who has contributed to the execution of the wrongful act by instigation, advice or action’. According to Arti­ cle 2 of the Criminal Code, this provision applies also to acts other than the Criminal Code. It appears from the provision that Danish law makes no distinction between main persons and secondary persons; ‘any person’ is included. In other words Danish law applies an ‘Einheitstaterbegriff’. As appears from the section of Article 23 quoted, it is punishable to influence the will and to influence the possibility of violating the law (‘durch Rat oder T a t’); under D an­ ish law one normally refers to mental and physical participation respectively (‘ intellektueller und tech- nischer Beihilfe’).

One of numerous examples is found in a 1983 High Court judgment. The owner of an inn was convicted for aiding and abetting the illegal running of an inn; he had leased the inn to persons who did not have the necessary trade permit or a licence to serve alcoholic beverages (UfR 1983, p. 1094, High Court for the Western District). Another High Court judgment

(reported in greater detail above) convicted an advo­ cate of having participated in evading the prohibition against persons having no firm association with Den­ mark acquiring real estate (UfR 1976, p. 846, High Court for the Western District).

It may be difficult to give a precise definition of the objective limits of complicity. It is obvious, however, that it is not possible to qualify all acts which are part of the general chain of events as being of such a nature that one could naturally allege that that author ‘has contributed to the execution of the wrongful a c t’. The High Court for the Western District has, for instance, refused to classify wrong information in a brochure accompanying a testing device as an instiga­ tion to commit a crime (by the buyer, who relied on the information and consequently deposited toxic waste) (UfR 1985, p. 950).

Omissions may be criminalized under separate provi­ sions. Even apart therefrom, an omission may to some extent suffice in making a person liable for complicity. This applies not least to those managing a business. Danish law does not in general necessarily presuppose that the person in question is under a special ‘duty of care’ or ‘Rechtspflicht’ but criminal liability for an ‘unechtes Unterlassungsdelikt ’ will none the less become particularly relevant if it is reasonable to classify the situation as here indicated.

Liability for complicity presupposes that participation has been either prior to or simultaneous with the act being executed (‘Vollendung’). A number of special provisions do, however, impose criminal liability for ‘complicity’ after the fact. As an example one may refer to the Customs Act, which provides for the conviction of any person ‘who intentionally or grossly negligently sells or in some other way transfers, buys, or in any other way acquires, receives, transports or stores smuggled’.

The provisions on complicity may be applied to all types of offence — whether serious or petty, inten­ tional or negligent.

A number of criminal provisions presuppose that the perpetrator has a special position. However, it does not follow that it is not possible to convict other accomplices. This is implied in Article 23(2) of the Criminal Code, under which it is possible to reduce punishment for a party ‘who has contributed to the breach of a duty in a special relationship in which he himself had no p a rt’.

Occasionally an interpretation of a criminal provision may, however, conclude that criminal liability should affect only the person who is explicitly mentioned therein. In such a situation, liability for complicity is excluded. This is an ‘eigenhandig D elikt’.

This will often be the case where criminal liability is based upon a violation of a prior order issued by a court or by an administrative authority. In parts of administrative criminal law, and particularly in envi­ ronmental law, the classical technique of general pro­

visions has been largely abandoned. In these areas the working procedure is instead to issue orders backed up by penalties, the violation of which is likewise penalized. This novel legislative technique also has a bearing upon the circle of persons which may be held liable.

In the same way concursus necessarius may result in

exoneration from punishment. In practice this issue has been particularly dealt with by the courts in relation to such terms as ‘the seller’ or ‘the buyer’. Finally, special limitations have been introduced to various special acts, for instance on the liability of the mass media and within the construction industry. Certain statutory provisions aim directly or indirectly at the management of a business. If so, the issue as to who should properly be held liable within manage­ ment often gives rise to doubt. The answer may depend on the designation of the position and the employment contract, the nature and extent of the business, and the criminal provision itself.

Some general guidance may be found in Article 45 of the Companies Act (Act No 433 o f 18 July 1988). Under this article it is incumbent on the board of directors to see to the proper organization of the company’s business. The board must furthermore see that the bookkeeping and financial administration are controlled in a way which is satisfactory in the light of the company’s situation. Liability is not placed upon the board as such, but upon the individual members of the board. It is also part of their duties to provide clarification of any abnormal conditions with which they become acquainted.

Under Article 54 of the Companies Act the manage­ ment is in charge of the daily administration o f the company in accordance with guidelines and directions issued by the board. Management shall see to it that the company’s bookkeeping takes place in accordance with relevant statutory provisions and that financial administration is carried out in a sound manner. One o f the duties o f management is to see to it that taxes are paid in time.

Where a management board has divided the tasks so that one or more members are in charge o f finances and others are in charge of technical matters, liability may depend upon the area within which a violation takes place. In judicial practice there has for instance arisen a case where a joint-stock company and its two chief executives were indicted for delayed payment of withholding tax. The company and its financial direc­ tor were convicted whereas the technical director was exonerated (municipal court judgment).

Similar principles apply m utatis mutandis to other

types o f companies.

Within a firm, agreements may have been made on where to place liability, if any, which is termed ‘delegation’. In general, such agreements are consid­

ered invalid as contrary to good ethics (bonum et

aequum).

There are, however, a few statutory provisions within specific areas which provide that agreements on dele­ gation may legally be entered into. The most impor­ tant example is found in Article 23 of Safety and Health at W ork Act. According to this rule an employer may delegate his liability to operations managers, works managers, or other qualified superi­ ors.

Liability may also be transferred legally by transfer­ ring the general competence and the general liability within an area. Reference may be made in this connection to the case reported above where a divi­ sion within management between a technical and a financial section was upheld in a criminal case. Another type of private transaction involves the use of puppets (‘Strohm ann’). A person in bankruptcy may for instance leave it to his spouse to carry on a business in name but not in reality. Should the business be involved in criminal actions, for instance in connection with payment of taxes or VAT, the question arises over who is criminally liable. If it is obvious who is actually in charge, criminal liability will in general be placed upon him or her. This does not mean, however, that the puppet in question will be exonerated. He or she has been aware that the task in question could not be carried out or actually was not carried out by him or her. Consequently, there is a possibility of imposing criminal liability on the pup­ pet. Finally, there is also the possibility of dividing a fine so that both parties are penalized.

As previously mentioned, it is assumed that general rules on complicity are not applicable where criminal liability presupposes a specific order. Against this background there is some doubt whether an activity as a puppet based on the fact that the master has been deprived of his right to engage in such activity is criminal in itself. (In other words, even if the activity in itself was carried out in a perfectly legal manner.) Article 131(2) of the Criminal Code has solved this dubious point by prescribing the following: ‘Any person who assists another person in carrying on an undertaking after the person has been deprived of the right to do so shall be liable to a fine or, in particu­ larly aggravating circumstances, to simple deten­ tio n ’.

Subordinates may also be punished for complicity even if they have acted under an order from a superior or if a superior is otherwise guilty. Should the subordinate have acted intentionally or should a particularly aggravating act be involved, the subordi­ nate will not infrequently be included in a criminal action. An example from judicial practice involves a joint-stock company which sold carpets at meetings. The agent made an oral presentation which contained false information regarding other products. The agent explained that he had spoken on the basis of a

manuscript which has been delivered to him with instructions to stick meticulously to the manuscript. This statement was not contradicted. Some board members as well as the agent were indicted under the Marketing Practice Act. The Commercial and Admi­ ralty Court refused to take into account the agent’s contractual obligation to make the statement referred to (UfR 1964, p. 835).

In practice, the prosecuting authorities in most cases indict only the party which has actually been in charge (the owner, the managing director or the board) and/or the party who has personally benefited from the violation. This limitation of indictment is legal in light of the fact that ‘ special mitigating circumstances ’ will frequently be at hand (Article 723(2) of the Administration of Justice Act) and also taking into account a desire to use resources in an appropriate way where ‘the prosecution will cause difficulties, costs or a prolonged period in court out of proportion to the importance of the case or the sentence which may be expected’ (Article 723(3) o f the Administra­ tion of Justice Act).

3.6.2. Attempt

The scope o f criminal liability is furthermore expanded through the rules on attempt. Article 21(1) of the Criminal Code contains the main rule which runs as follows: ‘Acts which aim at the promotion or accomplishment of an offence shall be punished as an attempt when the offence is not completed’. This provision applies to offences against the Criminal Code as well as against separate legislation (see Arti­ cle 2 of the Criminal Code). The scope of Article 21(1) is, however, limited considerably through Arti­ cle 21(3), according to which the rule is not applicable unless ‘ a penalty more severe than simple detention is prescribed for the offence’. This limitation is of special importance outside the Criminal Code, includ­ ing administrative criminal law.

In Danish law the said rule of the Criminal Code expresses an extremely subjective position. Admit­ tedly, application o f the rule is contingent upon an act having been committed. (‘A cts’ is interpreted as being fulfilled through one ‘a c t’.) But it is not a condition that the act in itself shall be a suspect or risky one. N or is it a condition that the act shall have any close relation to the completion of the crime, be it timewise or in any other relation. Even acts which are highly remote may fulfil the objective conditions for consti­ tuting a criminal attempt. Buying a box o f matches may be punished as an attempt at arson (assuming

sufficient mens rea) and, in principle, it may result in

life imprisonment (Article 180 o f the Criminal Code). An agreement to commit a crime likewise fulfils the conditions provided it is sufficiently concrete. The same applies to invitations to commit crimes but generally not to offers to commit crimes.

An act may be an attempt even though the crime itself may be impossible; this means that even an ‘untau- gliches Versuch’ is punishable.

Liability for attempt presupposes intention. Further­ more, the perpetrator’s decision must be fairly con­ crete in terms o f the type of crime as well as in terms of time and place.

The maximum penalty for an attempt is identical to the maximum for completed crimes. Article 21(2) does, however, optionally prescribe that punishment ‘may be reduced ... particularly where the attempt gives evidence of little strength or persistence in the criminal intent’.

Legislation contains a number of scattered specific provisions on acts of attempts being punishable. Occasionally, their meaning is merely that general rules on attempt are applicable; the purpose o f saying so in a special rule may be that the maximum penalty prescribed is so low that Article 21 of the Criminal Code is not applicable due to the limitation contained in section 3.

A good example is found in Article 24 o f the Act on Administration of the EC M arket Organizations for Agricultural Products: ‘Rules established under the authority of this Act may prescribe that infringements o f them or attempts to infringe them shall be punish­ able by a fine’. In other cases the purpose may be to advance the element of accomplishment; for example, driving under the influence of alcohol (Article 53 of the Road Traffic Act). Unless there are special aspects pointing towards a specific interpretation, the ten­ dency will be to choose the former solution, in other words to apply all general rules on attempt.

Articles 22 and 24 o f the Criminal Code contain provisions on exoneration, among other things where the perpetrator has ‘voluntarily, and not because of fortuitous obstacles to the completion of the offence, ... prevented its completion’.