The Role of the Public Prosecutor in Relation to the Execution of Sanctions
Chapter IV
The Role of the Public Prosecutor in Relation to the Execution of Sanctions
The execution of sanctions is regulated by the Corrections Act of 2000, in force from 2001.
No sanction can be implemented until the chief constable formally orders that the judgment imposed by the court be executed (Sect. 997 AJA). The chief constable acts under general supervision of the regional prosecutor.
The recovering of fines is entrusted to the police (Sect. 90 Corrections Act). The police may grant respite, or allow payment of a fine in instalments, or even, in cases of great hardship, remit the fine altogether up to the amount of 100,000 Dkr., about € 13.000,-. In the case of higher fines, the Minister of Justice, i.e. the Department of Prisons and Probation, is competent. If a fine is not paid, it shall be collected unless the police find that collection is not possible or would significantly reduce the individual’s standard of living (Sect. 91 Corrections Act). The police can collect fines by distraint and by withholding of the individual’s income, in accordance with the rules concerning collection of individual taxes in the Law of Taxation at the Source and the rules in the Law of the Joint Register of Withholding of Wages.
If a fine cannot be recovered, it can be replaced by a penalty of imprisonment (Sect. 53 CC). If the fine has been imposed by the court, the judgment must specify the alternative penalty. In the case of a compound fine, the (Sect. 55 CC) specifies the alternative penalty up to 10,000 Dkr. (= 10 days). In the case of a higher fine the alternative penalty must be fixed by the local court of first instance. The decision whether to impose the alternative penalty in the case at hand – or to remit the fine or grant a longer respite – is within the competence of the police, whose decision may be appealed to the Minister of Justice, whereas the court has no competence.
Once the decision to impose a sentence of imprisonment has been made, the practical implementation is left to the Prison and Probation Service. However, the Minister of Justice or the person so authorised by the Minister, can decide that the service of a sentence of imprisonment, or a part of such a sentence shall be suspended (Sect. 10 Corrections Act) when:
- a consideration of the convicted person, including the person’s work, educational, family or health situation, supports it; and
- due regard to enforcement of the law does not speak against suspension of the service.
In practice, the decision to suspend service for a limited time is entrusted to the police, whose decision can be appealed to the Minister of Justice, whereas indefinite suspension is granted, or refused, by the Minister of Justice.
During the execution of a sentence of imprisonment, the chief constable enters into the picture when sensitive questions of leave of absence to prisoners are to be decided. The prison concerned has the formal competence, but the Minister of Justice has decided that the police be consulted if the convict is regarded as dangerous. Leave of absence can only be granted to a convict serving a life sentence pursuant to consultation with the Attorney General.
When a conditional or suspended sentence implying probation or a community service order or other special conditions is imposed, the probation service is competent. If the convicted person does not comply with the conditions, e.g. does not fill in the hours of work pursuant to the community service order, the probation service must submit a report to the prosecution service, i.e. the chief constable, when the violation must be presumed to result in a likely risk of criminal behaviour, or in case of a repeated violation (Sect. 99 Corrections Act). The prosecution service may, in theory, decide not to report the violation to the court, but will in practice always bring the case to court. In the case of a breach of conditions or a suspended sentence the court may warn the convicted person or, by order, amend the conditions of the sentence, or, by sentence impose a punishment or, when a punishment was already prescribed in the terms of the suspended sentence, decide that such punishment is to be executed (Sect. 60 CC). When a community service order has been breached, the court must also decide whether to impose immediate punishment or not (Sect. 66 CC).
When the accused is not sentenced to an ordinary penalty such as fine, imprisonment, suspended sentence, or community service order, but has, although guilty, been acquitted of punishment because of mental illness or similar grounds (Sects. 16 and 69 CC) the court will normally apply another measure than a normal penalty. When lesser measures such as supervision etc. are considered insufficient, the court may decide to place the offender in an institution, or possibly apply a measure which may in future give rise to the placing of the offender in an institution (Sect. 68 CC). As a starting point, the sentence must lay down a maximum period for the measure chosen (Sects. 68a and 69a CC) but in case of certain severe crimes of violence no maximum penalty is to be laid down. Especially, dangerous offenders may be placed in safe custody, forvaring, for an indefinite period (Sect. 70 CC).
A decision to alter or totally terminate a measure pursuant to Sects. 68-70 CC may be made by Court Order upon an application of, i.a., the offender or the prosecution service (Sect. 72 CC). The central authority in those cases is the regional prosecutor, who keeps track of all cases involving such measures, whether the offender is placed in an institution or only under supervision and/or care. When the regional prosecutor considers that sufficient time has lapsed since the original judgment, also taking the nature and severity of the crime into consideration, he will, after consultation with the supervising authority, the mental hospital etc. decide to apply for a court order altering or terminating the measure. The chief constable sees to it that the case reaches court, but the actual decision is made by the regional prosecutor. It is almost impossible for the court not to terminate the measure when the prosecutor himself applies.
Pardon is, according to the Sect. 24 Constitution, a Royal prerogative, exercised on the advice and under the responsibility of, the Minister of Justice. The Minister is competent in the case of a sentence of imprisonment not exceeding 40 days and all sentences of fines, and has authorised the chief constables of police to act in all cases of fines not exceeding 100,000 Dkr. Pardon may be unconditional or only conditional on the convicted person committing no punishable offence within a specified period, in which case there is no supervision, or may be combined with supervision, in which case the rules concerning suspended sentences apply.
The Role of the Public Prosecutor in Relation to the Execution of Sanctions
The execution of sanctions is regulated by the Corrections Act of 2000, in force from 2001.
No sanction can be implemented until the chief constable formally orders that the judgment imposed by the court be executed (Sect. 997 AJA). The chief constable acts under general supervision of the regional prosecutor.
The recovering of fines is entrusted to the police (Sect. 90 Corrections Act). The police may grant respite, or allow payment of a fine in instalments, or even, in cases of great hardship, remit the fine altogether up to the amount of 100,000 Dkr., about € 13.000,-. In the case of higher fines, the Minister of Justice, i.e. the Department of Prisons and Probation, is competent. If a fine is not paid, it shall be collected unless the police find that collection is not possible or would significantly reduce the individual’s standard of living (Sect. 91 Corrections Act). The police can collect fines by distraint and by withholding of the individual’s income, in accordance with the rules concerning collection of individual taxes in the Law of Taxation at the Source and the rules in the Law of the Joint Register of Withholding of Wages.
If a fine cannot be recovered, it can be replaced by a penalty of imprisonment (Sect. 53 CC). If the fine has been imposed by the court, the judgment must specify the alternative penalty. In the case of a compound fine, the (Sect. 55 CC) specifies the alternative penalty up to 10,000 Dkr. (= 10 days). In the case of a higher fine the alternative penalty must be fixed by the local court of first instance. The decision whether to impose the alternative penalty in the case at hand – or to remit the fine or grant a longer respite – is within the competence of the police, whose decision may be appealed to the Minister of Justice, whereas the court has no competence.
Once the decision to impose a sentence of imprisonment has been made, the practical implementation is left to the Prison and Probation Service. However, the Minister of Justice or the person so authorised by the Minister, can decide that the service of a sentence of imprisonment, or a part of such a sentence shall be suspended (Sect. 10 Corrections Act) when:
- a consideration of the convicted person, including the person’s work, educational, family or health situation, supports it; and
- due regard to enforcement of the law does not speak against suspension of the service.
In practice, the decision to suspend service for a limited time is entrusted to the police, whose decision can be appealed to the Minister of Justice, whereas indefinite suspension is granted, or refused, by the Minister of Justice.
During the execution of a sentence of imprisonment, the chief constable enters into the picture when sensitive questions of leave of absence to prisoners are to be decided. The prison concerned has the formal competence, but the Minister of Justice has decided that the police be consulted if the convict is regarded as dangerous. Leave of absence can only be granted to a convict serving a life sentence pursuant to consultation with the Attorney General.
When a conditional or suspended sentence implying probation or a community service order or other special conditions is imposed, the probation service is competent. If the convicted person does not comply with the conditions, e.g. does not fill in the hours of work pursuant to the community service order, the probation service must submit a report to the prosecution service, i.e. the chief constable, when the violation must be presumed to result in a likely risk of criminal behaviour, or in case of a repeated violation (Sect. 99 Corrections Act). The prosecution service may, in theory, decide not to report the violation to the court, but will in practice always bring the case to court. In the case of a breach of conditions or a suspended sentence the court may warn the convicted person or, by order, amend the conditions of the sentence, or, by sentence impose a punishment or, when a punishment was already prescribed in the terms of the suspended sentence, decide that such punishment is to be executed (Sect. 60 CC). When a community service order has been breached, the court must also decide whether to impose immediate punishment or not (Sect. 66 CC).
When the accused is not sentenced to an ordinary penalty such as fine, imprisonment, suspended sentence, or community service order, but has, although guilty, been acquitted of punishment because of mental illness or similar grounds (Sects. 16 and 69 CC) the court will normally apply another measure than a normal penalty. When lesser measures such as supervision etc. are considered insufficient, the court may decide to place the offender in an institution, or possibly apply a measure which may in future give rise to the placing of the offender in an institution (Sect. 68 CC). As a starting point, the sentence must lay down a maximum period for the measure chosen (Sects. 68a and 69a CC) but in case of certain severe crimes of violence no maximum penalty is to be laid down. Especially, dangerous offenders may be placed in safe custody, forvaring, for an indefinite period (Sect. 70 CC).
A decision to alter or totally terminate a measure pursuant to Sects. 68-70 CC may be made by Court Order upon an application of, i.a., the offender or the prosecution service (Sect. 72 CC). The central authority in those cases is the regional prosecutor, who keeps track of all cases involving such measures, whether the offender is placed in an institution or only under supervision and/or care. When the regional prosecutor considers that sufficient time has lapsed since the original judgment, also taking the nature and severity of the crime into consideration, he will, after consultation with the supervising authority, the mental hospital etc. decide to apply for a court order altering or terminating the measure. The chief constable sees to it that the case reaches court, but the actual decision is made by the regional prosecutor. It is almost impossible for the court not to terminate the measure when the prosecutor himself applies.
Pardon is, according to the Sect. 24 Constitution, a Royal prerogative, exercised on the advice and under the responsibility of, the Minister of Justice. The Minister is competent in the case of a sentence of imprisonment not exceeding 40 days and all sentences of fines, and has authorised the chief constables of police to act in all cases of fines not exceeding 100,000 Dkr. Pardon may be unconditional or only conditional on the convicted person committing no punishable offence within a specified period, in which case there is no supervision, or may be combined with supervision, in which case the rules concerning suspended sentences apply.
