One of your basic rights is that you are entitled to having an attorney present when you are being interrogated by the police. ADVODAN offers the assistance of qualified defence attorneys who will help you safeguard your rights during interrogations and provide assistance going forward.
If the matter is one that may lead to you being given a custodial sentence, you must have a attorney appointed to you. You decide when you wish for your defence attorney to be involved in the matter; however, we would firmly advise that you ask for a attorney as soon as charges are being laid against you or if you sense that your interaction with the police may lead to charges.
If you chose to speak to the police without having your defence attorney present, you may ask later to have an attorney appointed.
Being under suspicion means that the police suspect that you have committed a criminal act, but do not – at present – have sufficient evidence to allow them to press charges.
A suspect has certain rights and obligations. First and foremost, you are only obliged to inform the police of your identity, that is stating your name, your CPR number (your personal identity number) and your address. You are not obliged to provide any other information. If you do not have a Danish CPR number, you must as a minimum state your birthdate and possibly your nationality. In certain situations, you may also be obliged to state when and how you have entered Denmark.
The police are obligated to inform you of whether you are a suspect – and whether you will be charged with a criminal offence. The Police also have a duty to inform you of the fact that you are entitled to have a attorney present and that you have the right to remain silent.
If you are under 18 years of age, you are entitled to have your parents or a public representative of the local municipality present.
If you are charged with a criminal offence, the Danish Prosecution Service will draft an indictment containing a charge (or several charges). The indictment is submitted to the court and criminal proceedings are instigated.
What is a preliminary statutory hearing?
A preliminary statutory hearing is a hearing, at which the court decides whether the police are entitled to retain a person in custody for a further period of time. If the judge decides that the conditions for doing so are met, the suspect will be remanded in custody. The preliminary statutory hearing must be commenced no later than 24 hours after the arrest.
What does closed doors (”in camera”) mean?
In the course of a hearing, the judge may decide that the hearing should proceed behind closed doors, or ”in camera”. This means that only certain individuals are permitted attendance at the hearing. In other words, only the prosecutor, the defence attorney, the accused, as well as any police and possibly also representatives from the social services may be present. The fact that the hearing is taking place behind closed doors also means that the individuals present are not permitted to disclose information on the hearing itself.
In the first instance, the State pays the fees of your defence attorney. If you are later convicted, you will be found liable to reimburse the fees to the State.
If you are found guilty of a lesser charge than the one put forward by the Prosecution, you will usually only be found liable to reimburse a proportion of the fees. It is always possible to set up an instalment plant with payments reflecting your financial situation. The attorney’s fees are determined by the court according to guiding tariffs set by the government.
When may you be retained in custody?
You may be retained in custody if - during the preliminary statutory hearing - the judge finds that the evidence available gives rise to suspect that you have committed a criminal offence.
At the same time, the court must find that you are a flight risk – e.g. if you do not have a permanent residence in Denmark or reside in/have ties to another country. Or there must be a real risk that you will commit further criminal offences of a similar nature, if you are released from custody, e.g. if you have previously been found guilty of similar criminal offences.
Finally, you may be retained in custody if there is a risk that you will try to influence the investigation of the matter. E.g. by disposing of evidence, by warning other suspects or by discussing and agreeing evidence with other suspects.
In cases of a more serious nature, the decision to remand in custody may also be based in arguments of law enforcement, meaning that the average person would consider it unreasonable or unfair that an individual who is suspected of having committed a criminal offence is at liberty while the case is being investigated.
Normally, this is advisable. If you attend the interrogation on your own, you do not have the right to see the evidence of the police. In principle, the police can have information available, of which you are not informed at first. This may be transcripts of interrogations of other individuals, fingerprints, DNA clues, tele-information showing where your telephone has been, and many other things. The police are under no obligation to share this information with you before interrogating you. This also means that during an interrogation, you may be confronted with assertions that what you are saying cannot be true for one reason or another and, thus, your credibility may be compromised.
If an attorney accompanies you, the attorney may demand access to case material, allowing the attorney to review the evidence of the police and discuss this with you. In certain circumstances, the police may refuse access to the evidence or impose upon the attorney that he/she does not have permission to inform you of one or more pieces of evidence. Under these circumstances, you will be informed of this and may act accordingly.
During an interrogation, the attorney is not permitted to advise you on how you should answer individual questions; however, he/she may provide general advice on whether it is in your interest to provide information at this stage of the investigation, or whether you should choose to remain silent.
The Danish courts and the Ministry of Justice have identified a number of so-called beneficiary defence attorneys. There is a greater number of these attorneys in the Copenhagen area and a slightly smaller number at the other districts dotted around Denmark.
You are free to appoint another attorney, if you wish. It is very important, however, that you appoint an attorney who specialises in criminal law.
Basically, all defence attorneys will charge the same fees and any competent attorney could be appointed as your defence attorney in a specific case. If you appoint an attorney who is geographically remote from you, the court may make the appointment subject to a transport costs restriction, which means that you become liable to pay a proportion of the travel costs in addition to the attorney’s fees. If this is the case, you must agree these with the attorney.
If it is a matter of summary proceedings based on a guilty plea, the role of the attorney is, amongst others, to advise you as to whether you or not ought to plead guilty on the evidence.
It is not merely a matter of whether in fact you committed the offence set out in the charge sheet, but also a matter of whether the charge is made on the correct evidence. For example, it is crucial whether an incident of violence is described as common assault or aggravated assault, whether vandalism is described as an act of vandalism or extensive criminal damage, and in certain traffic offences whether a violation of traffic regulations is a points offence or one that leads to a conditional or an unconditional disqualification from driving.
In summary proceedings based on a guilty plea, the role of the attorney is also ensuring that a guilty plea is recorded properly and bringing to the court’s attention any mitigating circumstances, which may lead to a lesser punishment. The defence attorney must always act only in the interest of the accused.
In a case where the accused pleads not guilty, the evidence must be presented and procedure conducted. In most cases, this happens during trial. The procedure comprises both evidence being given by the accused, witness evidence being given, the reading of any number of documents and the examination of other evidence such as fingerprints, DNA clues, etc.
The defence attorney must ensure that the questions posed to you by the prosecutor are being posed in a fair manner, which serves to provide clarification as to the course of events.
The defence attorney also has the important task of ensuring that the prosecutor does not base the prosecution on matters for which evidence has not been produced. Finally, the defence attorney has the important task, when examining you in court, of ensuring that your witness evidence represents your view of events.