Daugaard Sorensen v. Denmark: Withdrawal of Charges Against an Alleged Perpetrator of Rape

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The application concerns the withdrawal of charges against an alleged perpetrator of rape, in view of errors that occurred at the Regional State Prosecutor’s Office, in particular a failure to comply with a statutory time‑limit. The applicant, being the alleged victim, complained under Articles 3, 6, 8 and 13 of the Convention.

Criminal proceedings against A

5. On 7 June 2021 the applicant reported to the police that she had been raped by A during the night of 6 to 7 June 2021. Later that day, the applicant was interviewed by the police in the presence of a lawyer.

6. On 8 June 2021 the District Court remanded A in custody, finding that there were reasonable grounds for suspecting that he was guilty of rape under Article 216 § 1 of the Penal Code and of sexual activity without consent other than sexual intercourse under Article 225. The District Court also referred to the fact that the police had not yet had the opportunity to interview a number of relevant witnesses and thus further investigate the matter. In addition, since A and the witnesses knew and associated with each other, there were grounds to assume that A would interfere with the criminal investigation proceedings if he remained at large.

7. The police investigated the case, which included interviewing the applicant and a number of individuals, examining the scene of the crime and the applicant’s clothes, and searching A’s home.

8. A was released on 18 June 2021.

9. On 30 July 2021, with reference to section 721(1)(ii) of the Administration of Justice Act, the first-instance public prosecutor (at the relevant police department) decided to drop the charges against A, finding that due to insufficient evidence, it could not be proven in court that A was guilty of rape. It was taken into account, inter alia, that there were two opposing statements and that no other evidence conclusively corroborated the statement of either side.

10. On 18 August 2021 the applicant appealed against the decision.

11. On 16 September 2021 the second-instance public prosecutor, the Regional State Prosecutor (hereinafter “the prosecutor”) decided, following a review of the matter, to reverse the decision of 30 July 2021 to drop the charges. It appears that an email to this effect was sent to the first-instance prosecutor shortly after.

12. By virtue of section 724(2) of the Administration of Justice Act, the prosecutor’s decision of 16 September 2021, to proceed with the prosecution, had to be served on A before 30 September 2021, that is to say within two months from the date of the initial decision of 30 July, either through A’s Digital Post account (e-Boks) or by registered letter. Under Danish law it is compulsory for all citizens over the age of fifteen to have a Digital Post account in order to ensure secure digital communication between them and the public authorities. Dispensations can only be granted if the person concerned cannot use a computer due to physical or mental disabilities or other difficulties.

13. On 16 September 2021 the prosecutor sent a letter to A notifying him that the charges were maintained. However, owing to a typing error in the entry concerning A in the prosecutor’s database, it was incorrectly assumed that A was not able to receive letters through a Digital Post account. Consequently, a registered letter was sent. It appears that an email to this effect was sent to the first-instance prosecutor’s office on the same day. However, on account of another error in the prosecutor’s database, it was not written in the address field of the letter that A had a c/o address (that is to say, he was registered and lived at the address, but his name was not on the letterbox). The letter was therefore returned to the prosecutor’s office on 23 September 2021 with a stamp stating: “addressee unknown at this address”.

14. It followed from the internal guidelines of the prosecutor’s office that the returned letter should have been examined in order to determine whether it had been sent to the correct address; whether the charged person had registered at a new address in the meantime; whether the two-month period set out in section 724(2) of the Administration of Justice Act had expired; and whether it would be possible to make another attempt to serve the letter. Owing to yet another error, the prosecutor’s office found no reason to look up A’s address again, and therefore A was not notified of the prosecutor’s decision of 16 September 2021 before the deadline of 30 September 2021.

15. On 13 October 2021 the first-instance prosecutor filed an indictment with the District Court, seeking to schedule a court hearing. In November 2021, A’s defence lawyer asked for the criminal proceedings against A to be dismissed, since the two-month time-limit under section 724(2) of the Administration of Justice Act had not been complied with. The prosecutor agreed and, accordingly, on 16 November 2021 the District Court dismissed the case against A. It was thus no longer possible to prosecute A in court for the alleged rape.

16. By a letter of 30 November 2021, the prosecutor informed the applicant’s lawyer about the failure to notify A and apologised on that occasion for the unfortunate procedural error.

Compensation proceedings before the Criminal Injuries Compensation Board

17. On 21 December 2021 the applicant applied to the Criminal Injuries Compensation Board for compensation in respect of injury to feelings (tortgodtgørelse) under the rules of the State Compensation to Victims of Crime Act.

18. On 15 November 2022 the Criminal Injuries Compensation Board rejected the applicant’s claim for compensation. The Board found that the applicant had not sufficiently established that she had been the victim of a crime.

19. The applicant did not bring civil proceedings against the Criminal Injuries Compensation Board.

Compensation proceedings under Chapter 93a of the Administration of Justice Act

20. By letter of 1 December 2022 the Director of Public Prosecutions (Rigsadvokaten) notified the applicant’s lawyer of the possibility of lodging a claim for compensation against the police and the prosecutor in view of the administrative errors committed during the proceedings.

21. The Director of Public Prosecutions and the applicant’s lawyer also discussed the possibility of claiming compensation under Chapter 93a of the Administration of Justice Act, in particular section 1018h, which provides for a summary procedure in certain cases concerning compensation in relation to criminal proceedings. The Director of Public Prosecutions pointed out that it was uncertain whether the applicant’s claim for compensation could fall within the scope of Chapter 93a of the Administration of Justice Act (there was no relevant case-law), and that if it fell outside the scope of that Chapter, the applicant could lodge her claim against the police or the Prosecution Service in ordinary civil proceedings.

22. The applicant’s lawyer did not consider the remedy under section 1018h to be effective. Nonetheless, on 31 January 2023 the applicant claimed compensation in respect of pecuniary and non-pecuniary damage from the prosecutor in accordance with Chapter 93a of the Administration of Justice Act. The claim was divided into: (a) compensation for pain and suffering; (b) compensation for medical and rehabilitation expenses; (c) damages for ruined clothes; and (d) compensation for injury to feelings. Items (a)-(c) related to the rape reported to the police, whilst item (d), regarding compensation for injury to feelings, related to both the rape reported to the police and the administrative errors committed by the Regional State Prosecutor during the case proceedings.

23. On 6 March 2023 the Government requested that the examination of the case be suspended before the Court pending the outcome of the proceedings on compensation. This request was denied by the Court.

24. On 24 April 2023, the prosecutor rejected the applicant’s claims, finding that they fell outside the scope of Chapter 93a of the Administration of Justice Act, and that they should instead be brought in civil proceedings. In the reasoning, the prosecutor stated, inter alia, that the elements of the claim relating to damage sustained as a consequence of a criminal act did not fall within the scope of section 1018h of the same Act. Moreover, the element of the claim that concerned the administrative errors committed during the case proceedings did not fall within the scope of section 1018h of that Act, since that provision only applied if the claim for compensation was attributable to an official procedural act carried out during the criminal prosecution of the person claiming compensation.

25. The applicant appealed against that decision to the Director of Public Prosecutions, who upheld it on 30 June 2023.

Civil proceedings

26. The applicant did not bring civil proceedings against the police or the prosecutor.

29. The applicant’s case attracted public and political interest, in particular after a news feature had been broadcast about it by a national media outlet (Danmarks Radio) in May 2022.

In June 2022 the then Minister of Justice announced that the notification rules and procedure at prosecution level would be strengthened. He and the applicant were questioned twice before the Legal Affairs Committee of the Parliament.

In 2022, based on the case at hand, the Regional State Prosecutors clarified and emphasised the written guidelines for processing cases in which a decision to withdraw charges was subsequently reversed. They also established quality control procedures for such cases, including the appointment of a coordinator. As a result of other cases, an additional number of initiatives were taken by the Director of Public Prosecutions, the Regional State Prosecutors and the prosecutors at the local police stations in order to reduce the risk of error when a decision to withdraw charges was reversed.

In March 2023 the above-mentioned national media outlet produced a podcast series in which the applicant and a few other women told their stories about different errors committed by the police and the Prosecution Service in various criminal cases.

In March 2023 the new Minister of Justice stated in an interview with the national media outlet that he would bring about four different improvements in this legal area.

On 20 September 2023 the Government agreed with several parties in Parliament on initiatives relating to the maximum period for the reversal of the decision to withdraw charges in criminal cases.

As the first consequence of the agreement, the scope of application of section 1018h of the Administration of Justice Act will be extended so that in criminal cases, it will become possible to proceed with claims for compensation lodged by victims of rape, child abuse or sexual activity other than sexual intercourse under the summary procedure provided for in Chapter 93a of the Administration of Justice Act, when there have been errors in criminal prosecution committed by the police or the Prosecution Service concerning the maximum period in which it is possible to reverse the decision to withdraw charges.

This means that claims will be considered by the Prosecution Service and that, upon request, the Prosecution Service will bring decisions to refuse any such claims in connection to criminal prosecution before the courts, which will normally consider the claims under the framework of the criminal procedure rules.

This means, inter alia, that Regional State Prosecutors must see to the transmission of case files and set out the facts of the relevant cases before the courts.

There is no case law concerning such cases under the present rules, and such claims would presumably be determined under the general rules on compensation in ordinary civil proceedings. In view of the revision, it will, however, not be necessary in future to institute civil proceedings.

The second consequence of the agreement is that the maximum period of time under section 724(2) of the Administration of Justice Act will be extended from the current two months to four months to ensure that the police or the Prosecution Service will have more time and thus, in combination with the new guidelines, a better chance of rectifying matters relating to the maximum period in which to reverse the decision to withdraw criminal charges.

The final consequence of the agreement was that the Ministry of Justice promised by the end of February 2024, to provide a sound basis for taking a political decision by setting out the benefits and drawbacks of a special scheme to provide compensation for errors committed by the police or Prosecution Service, in particular if they failed to observe the maximum time-limit in which to reverse the decision to withdraw charges in criminal cases.

The proposed amendments to the Administration of Justice Act in the political agreement of 20 September 2023 have not yet been enacted.

The Court’s assessment

64. The Court reiterates that rape and serious sexual assault amount to treatment that falls within the ambit of Article 3 of the Convention and also engages fundamental values and essential aspects of “private life” within the meaning of Article 8. Applying that established principle, the Court considers that the applicant’s complaints may be examined jointly under Articles 3 and 8 of the Convention.

It observes in particular that States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal laws that effectively punish rape, and to apply them in practice through effective investigation and prosecution. Implicit in this context is a requirement to act with reasonable promptness and expedition.

A prompt response on the part of the authorities is essential to maintaining public confidence in their adherence to the rule of law and preventing any appearance of collusion in or tolerance of unlawful acts (E.G. v. the Republic of Moldova, no. 37882/13, §§ 39-40, 13 April 2021).

65. It is noted that on 7 June 2021 the applicant reported to the police that she had been raped by A the previous night. Immediately thereafter, the investigation commenced and A was taken into custody. By a decision of 30 July 2021, the first-instance prosecutor decided to drop the charges against A. On 16 September 2021 the prosecutor reversed that finding and restored the charges against A. It is not in dispute between the parties that the investigation and the prosecution were effective up until the latter date.

66. The prosecutor had to notify A before 30 September 2021 in order to comply with the two-month time-limit set out in section 724(2) of the Administration of Justice Act. Owing to an administrative error, the prosecutor’s search database wrongly indicated that A did not have a Digital Post account. Instead, the prosecutor sent a registered letter to A, but owing to another administrative error, the prosecutor failed to note that he had a c/o address. Thus, the registered letter was returned on 23 September 2021 with a stamp stating “addressee unknown at this address. Finally, between 23 and 30 September 2021, the prosecutor failed to rectify the above-mentioned mistakes or to make other attempts to notify A. Consequently, the charges against A had to be dismissed.l

67. Both the Prosecution Service and the Government have acknowledged and regretted the above-mentioned mistakes. In the Government’s opinion though, the errors were not so serious as to amount to a violation of the provisions relied on by the applicant.

68. The Court is generally not concerned with allegations of minor errors or isolated omissions in the investigation or prosecution. In the present case, however, the mistakes committed on the part of the prosecution led to the very serious consequence that it was prevented from prosecuting the alleged perpetrator of the rape.

The Court will therefore proceed to examine whether the undisputed shortcomings in the notification alone, or, as claimed by the applicant, combined with the legislation and its application, had such significant flaws as to amount to a breach of the respondent State’s positive obligations under Articles 3 and 8 of the Convention (M.C. v. Bulgaria, cited above, §§ 167-168).

69. The Court’s task is not to review the relevant legislation or an impugned practice in the abstract. Instead, it must confine itself, as far as possible, without losing sight of the general context, to examining the issues raised by the case before it (Aggerholm v. Denmark, no. 45439/18, § 101, 15 September 2020).

Taking into account the material before it, the Court is not convinced by the applicant’s assertion that section 724(2) of the Administration of Justice Act by itself amounted to an obstacle for her to obtain a judicial review in respect of the reported rape offence, and that the mistakes committed in her case were part of a structural and systemic problem in Denmark.

The Court has no reason to doubt that in general it has been unproblematic for the prosecution to reverse a decision by the first-instance prosecution to withdraw the charges, and to notify the relevant person thereof, within two months. It notes that there are only two methods of notification prescribed by section 724(2), namely by a Digital Post account or by registered letter.

With the Danish system of compulsory Digital Post accounts in place, notification would normally succeed instantly. The relatively short time limit does, however, require diligence from the Prosecution Service in order to ensure that notifications happens before the time limit expires.

70. The Court cannot ignore the fact that in the present case, at least three consecutive errors were committed – and acknowledged – by the Prosecution Service, including a failure to follow the internal guidelines of the prosecutor’s office when the registered letter was returned to its sender on 23 September 2021. The Court thus notes that the prosecution had ample time, before the deadline of 30 September 2021, to verify whether the registered letter had been sent to the correct address, whether A had a new address and whether it would be possible to make another attempt to serve the letter of notification.

It would also have been appropriate to verify whether the prosecutor’s database was indeed correct in indicating that A, quite exceptionally, did not have a compulsory Digital Post account.

Regardless of whether the first-instance prosecutor, or other administrative authorities, may also have been responsible for the failure to notify A within the prescribed two-month deadline, the result remained the same; the charges against A were dismissed by the District Court on 16 November, and consequently, the applicant was not secured an effective prosecution or judicial review in respect of the rape offence that she had reported to the police.

71. The foregoing considerations are sufficient to enable the Court to conclude that there have been such significant flaws in the procedural response to the applicant’s allegations of rape that there has been a violation of the respondent State’s positive obligations under Articles 3 and 8 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,