THE RIGHT TO FAIR TRIAL IN THE KINGDOM OF DENMARK
By Judge Peter Garde, Hillerød Criminal Court.
I. Introduction and General Description Of The Danish System
This paper will present a general description of the Danish system and answer the questions presented in the questionnaire.(1) On the whole, the Danish system of criminal and civil courts is simple and unitary. There are in Denmark proper, not counting the Faroe Islands and Greenland, 82 courts of the first instance ("byret"). Mainly determined by the size of the population in the jurisdictional district, there are 37 judges in the Copenhagen City Court, from 15 to 8 judges in four big districts, 4 in one district, 3 in six districts, 2 in 22 districts, 1 in the remaining 48 districts. All judges are empowered to deal with all kinds of cases except for the majority of the two-judge districts, where traditionally one judge deals with civil and one with criminal matters, which exception is now being gradually abolished. All cases are dealt with in the courts of first instance with numerically insignificant (less than one percent) exceptions: in criminal cases jury trials begin in the High Court, see E.2, 1) below, Rpl. 687. In civil cases there are the following three main exceptions: 1) Suits against the Government or some government agencies, unless the parties agree on trial in the lower court, Rpl. 225; 2) cases of special importance, including cases involving foreign law or European Union law, upon application from a party followed by a free decision by the judge of the lower court involved, Rpl. 226; 3) cases involving a monetary value exceeding 500,000 kr., upon demand by either party, Rpl. 227. All cases are decided by one learned judge sitting alone except for criminal trials before a mixed court, see E.2, 2) below, Rpl. 686, and a few groups of civil cases, especially housing cases and cases before the Maritime and Commercial Court of Copenhagen, a court dealing with cases demanding specialised knowledge.
The local courts also contain the Probate Court, the Bailiffs Court, and the Land Registry. Those matters are entrusted to lawyers, who are not (yet) appointed judges, "referendars". Those lawyers are allowed to adjudge mostly smaller trials upon the responsibility of the judge. The congestion of cases during the later decades have necessitated that a growing number of trials have been entrusted to not-appointed judges, whereas the greater part of the workload in the Probate Court etc. is now carried out by the clerical staff, excluding disputes.
There are two High Courts ("landsret") containing 46 and 23 judges respectively, one for the eastern part of the realm, "Østre landsret", sitting in Copenhagen and one for the western part of the realm, "Vestre landsret", sitting in Viborg, a very ancient town of Jutland. Except for the small number of cases in the first instance -- which are however, the most complicated and time-consuming cases -- they function as courts of appeal. The court is composed of chambers of three learned judges in civil cases and petty criminal cases and in other criminal cases either with a jury or as a mixed court with three lay assessors.
The Supreme Court, which is sitting in Copenhagen, consists of 15 judges. It is exclusively a court of appeal, for details see G below. Normally five judges decide a case, but more judges may be assigned if the importance of the case so warrants.
The chief judges of the main courts are called "presidents".
The career pattern of judges is that the majority of judges in the courts of first instance are appointed from the number of younger lawyers employed in the courts, whereas the majority of judges in the Copenhagen City court and, indirectly, the Eastern High Court (to a lesser extent the Western High Court) and the Supreme Court have spent their youth in the Ministry of Justice. Only rarely are barristers in private practice appointed. The narrow recruitment base has been criticized and may well be modified in years to come, especially for the High Courts and the Supreme Court.
The prosecution service is on the local level amalgamated with the police, a unique system only parallelled in Norway, as far as I know. The Chief Constable of Police ("politimester"), his Deputy, and the Assistant Chief Constables must have a legal degree. The police districts, 54 in number, are fairly small, each district covering one or a couple of court districts. One of the lawyers directly employed by the police and prosecution service is the prosecutor in court, except for minor cases, especially road traffic cases where a policeman, normally of a rank equivalent to sergeant or inspector, may act as prosecutor.
On the middle level the police and the prosecution service are separate. The Chief Constables refer to the Commissioner of Police for the Realm as concerns police matters. As concerns the prosecution, there are six Regional Prosecutors, corresponding to the "Procureur du Roi" (Danish "statsadvokat"). They decide a few cases of first instance and have powers of inspection over the Chief Constables in their capacity as prosecutors. Also, they decide all questions of appeal andjury cases, and they act as prosecutors in the High Courts.
In addition to the six Regional Prosecutors there is a special prosecutor for serious economic crimes, characterized by a very close co-operation between lawyers and detectives. He acts as prosecutor in both local courts and High Courts.
The prosecution service is headed by the Attorney General (or "Director of Public Prosecutions", Danish "rigsadvokat"). He issues general orders, circulars etc. and acts as prosecutor in the Supreme Court.
Technically speaking, the Minister of Justice is the general superior of the prosecution service. Cases of direct importance to the safety of the realm, such as espionage and cases against higher civil servants for crimes committed in office cannot be initiated in court without his order, but the minister may seize every case whatsoever. Theoretically speaking, even Parliament ("Folketinget") might, by means of a threat to bring in a vote of no confidence, influence the prosecution service, which has -- in my view rightly -- been criticized. In reality, the situation is less alarming, as the Ministry of Justice acts with great restraint. In Norway, the King in Council, i.e. the entire Government, is head prosecutor.
The defence I refer to is decribed in C. below.
With the coming into force in 1919 of the Code of Civil and Criminal Procedure or "Rpl." (in other translations called "The Administration of Justice Act" or AJA) the former inquisitorial system -- where i.a. the same official was judge and prosecutor in the court of first instance -- was replaced by a largely oral and adversarial system. At the same time the jury was introduced. Subsequently, and especially since the introduction of lay assessors in 1936, its scope has been much reduced. See E. below. The role of the judge is, however, less passive than in the Anglo-Saxon world, see D.7 below at notes 33-37. Also, although the defendant and the witnesses are mainly being questioned by the parties, the judge is empowered and obliged to put questions of his own -- "in the interest of truth", Rpl. 873. Except for the tiny number of jury cases, the judge is both umpire and trier of facts. The introduction of the adversarial system did not entail the adoption of the Anglo-Saxon rules of evidence, especially the rules regarding hearsay are much laxer in Denmark, see D.8 below. At least traditionally, pragmatism has been a leading force in Danish criminal justice, see F.3 below (but see also the concluding chapter).
A description of the court system would be incomplete without mentioning the great number of cases which never reach the court-room, i.e. petty violations especially of the Road Traffic act, where the Chief Constable of police is empowered to offer the accused to settle by compounding with a fine, Rpl. 931. The system corresponds to the Scottish "procurator fine", but is a more workable instrument, as the police may suggest any amount whatsoever. The system also resembles the Dutch "transactie". In practice, the police fixes the fines according to a "Catalogue of Fines" issued by the Attorney-General. Also, violations of fiscal laws and of European Union rules may be settled in this way, the fines being in those cases suggested by the departments concerned. More than 200,000 cases are disposed of in that manner (for other statistics, see E.2 below).
The rights of the accused are not infringed upon, as he may refuse to pay, thereby necessitating a trial at law. Even his passivity entails only that the case goes to court. On the other hand, passivity in face of the summons to appear in court very often causes a judgment in absentia, see D.4 below.
A detailed study on "Settlement" in French/English in the Member States of the Europeannion, is in course of preparation. I am the author of the Danish chapter.
The Danish Penal Code dates from 1930, and has been in force since 1933. It has been amended and promulgated many times, the latest promulgation being in 1992. The first or General Part covers general principles on penal matters such as self-defence, necessity, attempt, complicity, limitation, and a description of all punishments, including parole, suspended sentences, community service, imprisonment and fines. The second or Special Part deals with the so-called classic crimes and misdemeanors, such as crimes against the state, persons, and property, and the most serious drug and fiscal cases. Other offences are described in a great number of other statutes, of which the most important is the Road Traffic act. The General Part of the Penal Code applies to all offences whatsoever. The most important difference between offences described in the Penal Code and other offences is that classic crimes presuppose intent (unless otherwise stated), whereas negligence normally suffices outside the Penal Code.
A. Treatment During Detention Prior to and During Trial
1. Protection from Torture etc.
Torture and similar treatment is, as a matter of course, not applied in Denmark. The main safeguards against ill-treatment are the court's control and the accused's right to counsel. No one suspected of a crime can be detained by the police for a period exceeding 24 hours without being brought before a judge -- this rule is also enshrined in the Constitution 71 -- and during the hearing when the question of detention on remand is to be decided, counsel must be assigned unless the accused has retained counsel himself, 731 (details in C. below). Detention can only be imposed for four weeks at a time, 767,(2) creating a possibility for periodic oral complaints by the accused to the court. Also, letters from the detained accused to the judge, defence counsel, the Ministry of Justice, the Department of Prisons, the prosecution service, the police, Members of Parliament ("Folketinget"), and the Parliamentary Ombudsman must be forwarded unopened, 772. Except for extreme circumstances the same applies for letters from a detained alien to his own ambassador or consul. Taken altogether, it is impossible that a detained person will be "buried" in jail.
When necessary to prevent a suspect from tampering with the evidence the court may order his isolation from other prisoners (not from human society altogether), 770 a. Isolation can be ordered for at most 28 days at a time (the first time 14 days). In ordinary cases there is an absolute limit of 2 months, but when the suspicion concerns a crime with a maximum punishment of 6 years imprisonment or more, i.a. the bigger drug cases, where isolation is most commonly applied, there is no limit in law. In a couple of cases complainants to the European Commission of Human Rights have described the practice as torture and inhuman treatment, but the Commission has dismissed the complaints as manifestly unfounded.(3)
In cases of detention according to the Aliens Act a detained alien must be brought before a judge within 72 hours, not 24 as in criminal cases. In many other respects, however, the same rules apply in both kinds of cases.
2. Right to Silence, Self-Incrimination, and Confessions.
Suspects have the right to remain silent before the police and in the criminal court and must be informed of that right at all stages, 752, 754, 868. No sanctions attach to the refusal to speak, but indirectly such refusal may harm the accused, e.g. the risk of detention on remand is bigger, especially on grounds of risk of his tampering with the evidence. Also, the possibility of compensation for unjustified deprivation of liberty is reduced in practice, see I. 3-4 below.
No express law forbids the interrogator from continuing the questioning after the accused's assertion of his right to silence or to consult a solicitor, but in my experience the questioning ends as a matter of course. An accused's silence -- or, which amounts to the same, his change of statement -- is not an absolute proof in the absence of other evidence, but may be used against him, both by the prosecution and the court. Denmark and possibly other continental European countries are thus in clear opposition to the common law tradition.(4)
The most common example is drunken driving, where the driver has not been arrested "on wheels", but has reached his home before the arrival of the police. A defence that he has partaken of alcoholic beverages during that interval, will normally only benefit him if forwarded at once before the arresting officer, thus enabling the police to find -- or not to find -- corroborating evidence such as moist bottles, smelly glasses etc. Another example is the alibi defence offered after initial silence. A confession obtained without the benefit of counsel can always be used when the accused, cognizant of his right to counsel, has not asked for counsel -- an express waiver is not necessary -- or the case is so small that the police are not bound to inform the accused of that right, e.g. in road traffic cases. Whether it can be used in cases where the police (or the court) ought to, but did not inform the accused of his right to counsel, is more dubious and has to my knowledge never been decided, but in my view the confession will probably not be excluded. On the other hand, in a few recorded cases where the accused was not informed of his right to silence, his statement (not a confession) could not be used in later stages.(5)
Promises, falsehoods, and coercion are expressly prohibited during interrogation. The interrogation must not be extended with the sole view of obtaining a confession, and the exact time of beginning and conclusion of all but the shortest of interrogations must be written down, 752. Coercion is not defined in law, and I know of no practice, but the examples in the questionnaire, viz. threats to relatives and firing from employment, would probably be so regarded. While I know of no cases of exclusion of a confession or other statement on grounds of coercion, it is not unheard of for the court to refrain from placing overmuch faith in a confession, when the accused may have been influenced by e.g. the shock of sudden arrest or the wish to avert suspicion from a close relative, but that tends to the weight and credibility of the confession, not its admissibility.
Spouses and close relatives -- the Rpl. only uses the expression "the nearest", leaving the application to the discretion of the court -- are always competent, but not compellable witnesses for or against the accused and must be told so at the beginning of the hearing, 171, 173, which since 1978 also applies to interrogations out of court, 753. The rules are not totally unambiguous, e.g. it is not regarded as interrogation if a woman enters the police station and makes a complaint against her husband, which is then taken down by a policeman, in which case it is absurd to warn the complainant of her right to silence; however, a follow-up interview on a later occasion counts as interrogation, and now the warning must be given. If the police forgets the warning, and the witness later refuses to testify in court, the follow-up statement, but not the original complaint, will normally be excluded. A refusal from a spouse etc. to testify has no retroactive effect in Danish law, unlike for example German law.
Whereas according to national law the lawfully recorded statement from a witness who only later refuses to testify, is admissible, the practice of the European Court of Human Rights, especially the Unterpertinger judgment, may well oblige the court to refrain from using the statement, if made without possibility of the accused or defence counsel to challenge it. A detailed description of this question in Danish practice falls outside the scope of this report.(6) A formerly rarely used rule enabling the court to compel an otherwise non-compellable witness to testify, when the importance of the case so warrants, may well be used more now than before Unterpertinger, 171 subs. 3.
I know of no cases where the defence has claimed that evidence obtained indirectly from a coerced statement be excluded, but I am certain that such evidence would always be admitted for use at the trial, see also D.11 below. The concept of "Fernwirkung" and "the fruit of the poisonous tree", are not part of Danish judicial practice.
Whereas deception of the accused during interrogation is prohibited, the interrogator is under no obligation to inform the accused of all evidence against him, and if necessary for the purpose of the investigation, the police may prohibit defence counsel -- who personally has the right of full disclosure -- from passing on information to the accused, 745. Disagreement on this or any other point during the investigation may by either party be referred to the court, 746. At the beginning of the trial proper a bar on disclosure is lifted.
The accused must not necessarily know the consequences of a confession, before the confession may be taken down for later use;(7) if the confession is made in court and used as the basis of the decision, the accused normally has the benefit of counsel and will have been informed by him e.g. of the potential sentence. Formal agreements between parties, "plea-bargaining", are unknown in Danish law. A confession may always be withdrawn until the last moment.(8)
Upon a confession, petty offences may be adjudged summarily, 935, and even the most serious crimes may be adjudged after a much shorter procedure than in a full trial, 925 (also known in the closely related Norwegian law), provided the parties agree to this procedure. Even though the parties may have agreed beforehand and talked informally of the expected outcome, the judge is never a party to such "agreement", and the penalty is normally the same as upon conviction after a plea of not guilty.
The procedure contains some elements suggesting plea-bargaining. Thus the prosecution may waive a disputed count or part of a count on condition that the accused agrees to the simplified procedure for the counts confessed to. In that case the judge is not entitled to consider the waived counts, when determining the level of punishment, which may well entail a more lenient penalty than upon a full trial.
The procedure is radically different from the Anglo-Saxon conviction upon a plea of guilty, in that the Danish judge must be convinced of the defendant's guilt. For this reason a simple admission of guilt is not sufficient; the judge will hear a full statement from the defendant and compare it to other evidence, which will be available for the court's inspection e.g. witnesses' statements out of courts and documents. The procedure is thus rather a shortened trial than a summary judgment. The judge is even entitled to refuse the application of the procedure.
The Dano-Norwegian shortened trial presents in my view a happy compromise, whereby time-consuming elements of the ordinary procedure -- the calling of witnesses, the deliberations of lay judges -- are discarded in furtherance of efficiency without sacrificing the defendants vital interests, especially as the defendant's assent to the procedure is an absolute precondition.
Authorities outside the criminal justice sphere will not expressly oblige a suspect to incriminate himself of a criminal offence, but on the other hand the citizens are often obliged to tender information to public authorities, e.g. the Inland Revenue or the Customs Office, which information may indirectly create the basis for an investigation of a criminal offence. Whether such information may be used in evidence against the accused in a criminal trial is not settled in Danish law, but the Norwegian Supreme Court has recently decided(9) that businessmen's non-voluntary statements to the prices authorities could be used in evidence in criminal proceedings also when the European Convention of Human Rights was taken into account; the decision has been criticized,(10) but is in my view correct.
3. Prisoners on Remand Compared with Convicted Prisoners
As a rule, stressed in several Orders ("Bekendtgørelse") from the Ministry of Justice, accused persons are segregated from convicted prisoners, the former being placed in local jails and the latter in ordinary and bigger prisons. There are a couple of practical exceptions: as time spent on remand is always computed against the final sentence, it may well happen that the convicted prisoner at the moment of sentence has served most of his punishment, and if less than 30 days remain until the expected day of release -- or parole, which normally ensues on expiry of two-thirds of the punishment -- the prisoner may be left in jail for that short remainder. Also, under exceptional circumstances, the Directorate of Prisons may decide that a convict must serve his sentence in a local jail.On the other hand, if conviction seems certain, but the progress of the case is slow e.g. because of psychiatric examination, the accused may well wish himself placed in a real prison instead of a local jail, as conditions are often better especially in the open prisons. In these admittedly rare cases a prisoner may with his own consent and that of the prosecution be transferred to the institution where he is expected to be placed after sentence, 777. See also J.5.-6 below for juveniles.
4. Detention or Release Pending Trial.
In order to obtain the detention or continued detention of the accused the prosecution must show the following, 762:
1) A justified suspicion of an offence, i.e. more than the degree which makes a warning of the right to silence, A. 2 above, necessary, but less than the certainty beyond a reasonable doubt necessary for conviction; one author(11) demands that guilt is more likely than innocence, another demands strong objective data;(12) I agree with the latter view, as on the first day a preponderance of evidence is very difficult to ascertain; and
2) that the offence may in law result in imprisonment for 1 year and 6 months (13) or more (which includes most cases in the middle range, e.g. property crimes except for petty larceny, assault, but not disturbance of the peace); and
3) specific reason to believe that the suspect will, if released either a) abscond (persons of no fixed abode, aliens), b) commit new offences (earlier convictions or arrests), or c) impede the investigation, in particular by removing evidence or by warning or influencing others.
If 1) the suspicion concerns either a crime with an upper limit of at least 6 years imprisonment (murder, arson, rape, robbery, serious drug cases, the most serious property crimes except theft) or assault, where the sentence in concreto is expected to amount to 60 days imprisonment or more, and
2) the suspicion is "particularly confirmed" (e.g. confession, reliable eye-witness, uncontrovertible technical evidence), then the prosecution need not fulfill the conditions listed under 3). The European Court has in the Danish case of Hauschildt stated that the difference between a "particularly confirmed suspicion" and the degree of proof needed for conviction is so "tenuous" that a judge who has ordered detention citing the relevant subsection, cannot be regarded as "impartial" when it comes to the main trial. On the other hand the judge who has ordered detention citing only "justified suspicion", is still regarded as impartial, which is in my view fully correct.(14)
There is a general condition of proportionality;(15) which entails that a case may well warrant a short detention directly upon disclosure but not detention until trial and judgment. More specifically, detention may not be imposed if the offence is expected to result in a fine or a light imprisonment ("hæfte", used for very short terms e.g. drunken driving). On the other hand, expectation of a suspended sentence does not preclude detention. If there are some grounds for suspicion, but doubt remains whether all conditions for detention are met with, the court may grant a delay of 72 hours, during which time the accused remains in custody. Before the expiry of that delay the accused must be brought before the judge for final decision, 760.
Even if conditions are met with, the court may decide upon more lenient measures than detention, 765, e.g. supervision; placement in an institution for juveniles, J.5.-6 below; committal to a mental hospital etc. Bail is mentioned both here and in the Constitution 71, but is almost never used.
In practice according to the Annual Report of the Police, in 1994 66,110 persons were arrested by the police, of whom 44,916 were suspected of offences according to the Penal Code, and 21,194 of other violations. Apart from smaller groups, 58,281 were released by the police within 24 hours, 1,289 were released by the court, 364 were delayed for 72 hours and 6,127 were detained. Also, 70,202 persons were charged by the police for offences according to the Penal Code, more than 200,000 for violations of the Road Traffic Act, and 71,255 for other offences, of which the Drugs Act and some fiscal offences generated the greater part of arrests and detentions. Thus, in cases according to the Penal Code, a bare majority of suspects are arrested for a very short period, less than 24 hours, while 8% to 10% are detained. (As detentions are not subdivided, I cannot be more specific, but by far the greater number of detentions are caused by alleged violations of the Penal Code.)
The majority of detained persons are detained until final disposition. When the detention is motivated only by the fear that the accused will impede the investigation, he will be released when that risk is removed, but in other cases the grounds for detention will probably be deemed to exist until judgment. According to a detailed analysis for the years 1976-84,(16) which on the face of it seems valid also to-day, the average length of detention was about 52 days per case, of course with enormous differences from case to case; it may be added that in only 6% of cases, where detention had been applied in that survey, the defendant was acquitted. The time spent during detention is always computed against the sentence, even when the delay is due to the accused's wilful acts e.g. a frivolous appeal.
5. Release from Detention, Conditions of Pre-Trial Detention etc.
Both the police and the court may release the accused at any time, 766. The accused may appeal against the court's decision to detain (or the police appeal against a decision to release). The High Court/Court of Appeal (the same) reviews the decision in writing, but if the detention exceeds three months, the accused has the right of appearance in the High Court, 767. Both the accused and defence counsel -- a detained person has always the benefit of counsel -- may complain against almost all decisions by the police to the court and appeal from the lower court to the High Court. Censorship is in the discretion of the police, except for a decision to stop a letter, which must be approved by the court, 772. The police's decision to restrict or monitor visiting may be brought before the court, 771. Only the choice where to detain the accused is absolutely in the discretion of the police, 770, which gives the police the possibility to place co-accused in different jails without applying isolation (A.1 above). There are no special rules covering emergencies.
B. Notice
1. Length of Detention
Whereas the 24 hour rule and the four week rule, discussed in A.1 above, are absolute, there are no fixed rules on total detention before trial or release. However, the accused can always invoke the rule of proportionality, A.4 above,(17) or claim that the case is not being treated with all due speed, which may entail even a right to release in an extreme case, 768. The accused has the right of appearance at least every four weeks, but may waive that right; the court may in exceptional circumstances renew the detention in absentia, e.g. when the accused is undergoing psychiatric examination in a distant hospital or otherwise is placed in a distant jail, and the practical inconveniences vastly outweigh the usefulness of the accused's appearance, 767.
If the accused is during all stages at liberty, the first appearance in court is ordinarily also the last. When, however, the question of detention arises, the charges will be formulated at the beginning of the hearing (the prosecution is not barred from amending and amplifying the charges before the trial proper); the accused is given opportunity to talk with the defence counsel in a separate room and afterwards to be heard, if he so desires; the prosecutor reviews the other evidence (at this stage witnesses' statements to the police may be used without restriction, contrary to the trial, D.8 below); prosecutor and defence counsel plead; the court decides detention or release, 764.
2. Prompt and Detailed Notice etc.
Notice of hearings must always be given in a language understood by the accused, especially if non-appearance entails sanctions. The High Court has refused to order arrest upon the appearance of a British subject, as the noticewas in Danish only.(18)
The accused is informed of the charges at the latest when receiving notice of the trial, and whether brought before the court or only questioned by the police, he must be informed of the charges before questioning. When the indictment has been delivered to the court, the evidence must be available to parties, including the accused, 835. Before that stage defence counsel, but not the accused (probably not the unrepresented accused either), has the right of notice, normally including copies, of all evidence, 745. Counsel is entitled to show the evidence (or copies) to the accused, unless the police forbids this, but cannot hand over the evidence (or copies) to the accused, unless allowed by the police.
The accused's rights are the same whether he is at liberty or detained, but in practice information is fuller in favour of the accused in detention, as he is always represented by counsel, who has always right of notice.
According to the principle of objectivity the prosecution must not only provide that the guilty are called to account, but also that the innocent are not pursued against, 96, which entails -- according to all authors -- the duty to consider all evidence, whether detrimental to or in favour of the accused. As defence counsel has the right of notice, 745, evidence in favour of the accused is thus bound to be disclosed. The hypothetical possibility to limit counsel's right of notice is of no practical importance whatsoever. Of more importance is the implied condition that the right of notice only extends to relevant evidence. In a couple of recent cases the police did not consider themselves bound to inform the defence of purely negative investigation, "nought-reports", but as those reports were later shown to be not devoid of interest for the defence, the Attorney-General has stressed the police's duty to disclose everything.(19)
3. Time and Facilities to Prepare the Defence
As stated earlier, A.1 above etc., the accused must be brought before the court for the purpose of considering detention within 24 hours after the arrest, and counsel must be present.
In an annex to the indictment, the "list of evidence", the prosecutor names his own witnesses including their address and other evidence, 834, and states a minimum delay for the defence to supplement the list, 836, normally a week. Also, the defendant has the right (which he may waive) of at least four days' delay from receipt of notice until the beginning of the trial, 840. In practice, the defence often has a much longer time to prepare, and if either party produces a witness or other evidence without prior notification, the court cannot exclude such evidence only because of the lack of notice, 880, which rule also protects both sides against surprise evidence by providing for a proper continuance. Surprise tactics are frowned upon and are never intentionally resorted to by decent prosecutors or decent defence counsel.
A 1986 amendment gave the defendant the right to obtain a copy of the list of evidence, but a further amendment in 1987 decided that the defendant has only an absolute right to be informed of the names of witnesses, whereas their addresses may be kept secret from the defendant out of regard for their safety. Thus, the defendant has now no copy of his own of the list of evidence, contrary to counsel, 835.
C. Counsel
1. Right to Counsel, When and How?
At all stages the accused is permitted to be represented by counsel paid by himself. In practice, privately retained attorneys are very rare birds indeed, because first the system of court-appointed attorneys applies to rich and poor alike, second a free choice is combined with the system, and third even upon acquittal the public purse will only reimburse the privately retained attorney if the employment of such attorney is considered reasonable, and never at a higher rate than a hypothetical court-appointed attorney, 1007.
Technical minor details apart, the court will appoint counsel in the following cases (always provided that the accused has not retained an attorney himself), 731:
1. It is mandatory for the court and the accused directly upon indictment before trial in a case including lay judges; when the question of detention on remand arises; in all appeal cases conducted orally; and when the question of conviction in absentia arises, except when only a fine is demanded.
2. It is mandatory for the court upon application from the accused in all 925-cases (see A.2 above); and in cases involving loss of a driver's licence.
3. The court may at its own discretion with or without application appoint in all cases (with a right to appeal upon refusal), 732. In practice this happens in the earlier stages of big economic cases and serious sexual offences.
When counsel is appointed or retained, he must be present in court, at any rate during the trial proper, and when questions of detention arise. When isolation during detention is ordered, A.1 above, the accused can only be questioned in the presence of counsel, unless both the accused and counsel waive that right, 745. In other cases, the presence of an attorney is not mandatory, but counsel has the right to be present, when out-of court evidence is to be used directly, e.g. the result of a confrontation. Also, by refusing to talk except in the presence of counsel, the accused can force the police's hand.
The convicted defendant is almost automatically obliged to reimburse the public purse for all costs including the fees of the court-appointed attorney, 1008 (but not the salary of police and prosecutor). However, the police who collect costs, often waive repayment in cases of hardship. In practice only about 10% of costs are collected.
The accused must be informed of his right to counsel, 732. Before a decision of detention the accused must be given opportunity to talk in private with counsel, B.1 above, 764. When the accused is at liberty, the court-appointed attorney will directly upon appointment invite the accused to a conference.
In all jurisdictions the Ministry of Justice appoints a number of "beneficed" counsel upon recommendation from the judge and after consultation with the local and national bar associations (in my jurisdiction, 400-500 cases are decided per year, a little less than half with counsel; there are five beneficed lawyers). The beneficed attorneys act in both criminal cases and in civil cases involving legal aid, but they are not civil servants, and they can have a normal private practice at the same time. If no express choice is made by the accused, one of the beneficed attorneys is appointed, but another lawyer, beneficed or not, may be appointed at the wish of the accused (under certain circumstances the court can refuse admission or cancel an appointment, 733, 736). A detained person's wish to consult counsel is always honoured, and counsel has always access to his detained client.
2. Remuneration
The court fixes the fee of appointed counsel on the basis of hours spent in court, during police questioning, and visiting in jail. The fee for time spent in court includes normal consultation and preparation for trial, and counsel must make a good showing to be paid more. Guidelines are agreed between the Ministry of Justice and the National Bar Association with the intention to ensure that a court-appointed counsel is paid at roughly the same level as the judge.(20) That attorneys who never engage in other work than criminal trials, make more money, is inevitable.
3. Appeal
The right to court-appointed counsel extends through ordinary appeal, including leave to appeal, if granted, to the Supreme Court, G.1 below. If a convicted person upon final judgment requests a re-trial as extraordinary review, he must do so at his own -- or his attorney's! -- expense. Only if the court in question ("Den særlige Klageret", lit. "The Special Court of Complaints") orders an oral hearing, will counsel be appointed as a matter of law, 731, or of course also if re-trial is granted.
4. Competence of Counsel and Other Resources
Beneficed lawyers are chosen with care. In my experience, Copenhagen-based beneficed attorneys are often specialists, whereas beneficed lawyers in smaller jurisdictions invariably belong to the higher ranges of attorneys.
As for other resources the Danish tradition is for investigation to be conducted by the police exclusively. The defence may at all stages ask for new witnesses to be contacted, new tests etc., and if the police refuses the request, the question can be referred to the court, 746. Also, during the trial the defence may ask for a continuance with the purpose of obtaining a new investigation. Independent investigation by the defence is not prohibited but rather rare, and expenses for such purpose are only reimbursed under exceptional circumstances, 1007.
5. Confidentiality
Defence counsel can never be questioned as a witness as to what transpired between him and the accused, 170. If in the course of a court-authorized wire-tapping or the like communications between the accused and defence counsel come to light, such material must be destroyed at once, except if it gives occasion for charging the attorney with an offence or for depriving him of the right of representation during the case in question, 791.
D. Hearing
1. Trial without Undue Delay (21)
Except for 768 on undue delay in cases against detained persons, B.1 above, and 219, according to which the delay between final oral pleadings and judgment in a criminal case must not exceed one week, there are no fixed rules on delay.
There are no statistics for the average amount of time between arrest and formal charging (if by formal charging it is meant the filing of the definitive indictment in court), but the Ministry of Justice has helpfully provided the author with statistics for the average amount of time that has elapsed between the arrival of a case in the court's registry and the trial proper, as concerns the lower courts, from 1986 almost to the moment of writing. It is as follows:
1. When the accused is detained and
a) the trial lasts half a day in court or less: between 9.1 and 11.6 days;
b) the trial lasts longer than half a day in court: between 13.8 and 17.0 days;
2. When the accused is at liberty and
a) the case is a 925-case (A.2 above, confessions and reduced trial): between 52.0 and 33.3 days; a clear amelioration is seen in recent years;
b) the trial is with lay assessors and lasts half a day or less: between 59.9 and 37.0 days; also here there has been amelioration;
c) the trial is with lay assessors and lasts more than a half day: between 66.9 and 42.0 days; there has been the same tendency;
d) it is a petty case before a single judge, in absentia judgment possible (D.4 below): between 50.3 and 42.6 days;
e) it is a petty case before a single judge, not in absentia: between 57.8 and 44.2 days.
A few words of explanation are necessary. Cases against detained persons are finished earlier, because less time for finding the accused and notifying him of the trial is necessary, than when the accused is at large. Cases before a single judge are finished earlier than cases with lay assessors -- not to speak of jury trials (E.2 below) in the High Court, which are notoriously slow -- and cases without witnesses, 925-cases, earlier than full trials. Big economic trials are the slowest.
There are no comparable statistics for the High Court, where jury trials and appeals are disposed of, but they are slower than the lower courts. Six months is a typical delay from judgment in the first instance until disposition of the appeal.
There are no procedures in law to ensure that only meritorious cases are tried; (22) no "Zwischenverfahren", no filtering in a "Magistrates' Court" or the like. The judge cannot throw out the case at once. In practice, however, the prosecution following the principle of objectivity, B.2 above, eliminates doubtful cases. A recent author computes that only about 10% of all cases result in acquittal, as against about 50% in the Anglo-Saxon world. (23) No authorities are cited for this -- but the first assumption is undoubtedly correct. Undue delay in dismissing charges is sometimes a problem for accused persons at liberty who have been charged but never tried. In such cases the person charged can make a complaint to the higher echelons of the prosecution service (from the Chief Constable to the regional prosecutor or from the latter to the Attorney-General) or possibly to the Ombudsman, whereas the court cannot force the prosecution's hand.
New charges cannot be added without new notice or the consent of the accused, except if the new charge concerns a crime committed during the trial itself, 833. In practice consent is very often given, as the alternative is not dismissal, but an additional trial.
"Prompt trial" is not a legal concept in Danish law.
Limitation occurs in the following cases, Penal Code 92 et seq.: 1) after 2 years, when the offence in concreto is expected to cause a fine, or the highest punishment in law is 1 year imprisonment; 2) 5 years, when the highest punishment in law is 4 years imprisonment (this includes most middle-range crimes), 3) 10 years, when the highest punishment in law is 10 years imprisonment, 4) 15 years, when the highest punishment is imprisonment for a higher fixed term. Crimes carrying life imprisonment, above all murder, thus are not subject to rules of limitation. For certain fiscal offences the periods of limitation are longer, quite naturally, as those crimes are often disclosed rather late. Limitation is interrupted, when the case is brought before the court, not necessarily by bill of indictment, a demand e.g. for detention or for a search suffices. If, however, the prosecution, having successfully interrupted the course of limitation, then allows the case to lie dormant for longer periods, the limitation runs on regardless of the interruption. In later years the courts have become marginally more severe to the prosecution when estimating the subsequent investigation after the suspension of the limitation.(24) But as long as the case is diligently pursued after the suspension, limitation is impossible; thus counsel cannot bring about limitation by obstruction during the trial.
2. Trial in Public
Trials (and other hearings) are conducted in public, unless specially excepted, 29. Newspapers and other print media are always allowed to witness and report trials conducted in public. Photographing (and drawing) in the courtroom during sessions is only allowed with special permission from the court, 31. As an experiment some civil trials have been shown on television, not as day-today reporting, but later as documentary programmes. "Court Television" à la Simpson is not on the cards!
Public or press access may be prohibited out of regard to public morality (probably never); order in court; relations with foreign powers; in order to protect business secrets (civil trials only); when the accused in a criminal case is a minor (rarely applied); when the complainant in a trial of rape or of a sexual offence against a child is heard; to protect a party or witness (severe conditions). Under stringent conditions, hearings may be conducted in camera in order that further investigations may not be hampered. In practice, this is the most used exception, but only during preparatory hearings e.g. when an order to detain a suspect is made, but accomplices are still at large. A recent research, covering all work in three months in part of the Copenhagen City Court, my own middle-sized (about 87,000 inhabitants) criminal court, and a small rural jurisdiction, showed that in not a single case was access limited during the trial proper, but not seldom during hearings preparatory to the trial, e.g. in drug cases (in a very big drug case in my court with international connections the doors were only opened at the very end). Judgment must always be rendered in public.
Even if access is not limited, the court may prohibit or limit reporting of the trial, 31, which is especially important when it concerns disclosure in public of a party's identity. The accused's identity is often protected in that way. Only the reporting of the final judgment can never be restricted, but in practice the newspapers show great restraint, disclosing the defendant's identity only after a sentence of at least two years imprisonment is imposed or in cases of exceptional public interest.
As long as the case is sub judice, no one engaged with it is allowed to make public statements directly concerning the question of guilt, 1016 a; parties are, however, not precluded from talking to the press, as long as they do not prejudge the findings of guilt. Whosoever in public, intentionally or recklessly, misinforms about a criminal case sub judice, impedes the course of justice, or unwarrantably influences judges, including lay judges, may be punished with a fine or light imprisonment, 1017. The rule is used extremely rarely. The best-known case is the conviction and fine of 10,000 kr. (roughly 1,000) of the editor of a tabloid newspaper, who on the morrow of the jury's verdict -- Danish juries are not sequestrated -- in a mercy killing case against a medical doctor put on the front page "A (the name) must be acquitted", which was repeated and argued in the leading article on page 2.(25) By the way, the doctor was acquitted.
3. Venue
There is always venue in the jurisdiction where the conduct at issue occurred, 696, but in cases before a single judge, including 925-cases, the jurisdiction of the accused's residence may be chosen, 694, 698, especially when no witnesses are to be heard. Under exceptional circumstances a case may be moved, 702, 703; the case-law shows that the convenience of the accused residing in a distant locality, is never a sufficient ground -- on the other hand, he may be heard before his own local jurisdiction, in exceptional circumstances, especially in petty cases, 934 -- whereas the fear of local bias may create such an exceptional circumstance as in a notorious case of murder and arson.(26)
4. Trial in absentia
If only a fine is demanded, and the accused, having been notified of the trial, stays away, the court may decide the case at once, 934, provided the outcome is not dubious. In other cases, 847, the trial is adjourned, when the non-appearance is excusable and the court has been told beforehand of e.g. the accused's illness. If not, the court can always decide to arrest the accused; in the presence of counsel for the accused -- entailing the appointment of counsel, if not done before (27) -- the court can decide to hear the witnesses at once. Recently the Code has been amended so as to enable judgment in absentia on the following rather strict conditions: 1) the court does not consider the accused's presence necessary; 2) only imprisonment of at most 30 days (suspended or actual) and/or loss of driver's licence are at issue; 3) counsel for the defence must be present (and may, incidentally, argue against the decision to proceed in absentia); 4) the accused must have been notified in person and been told expressly of the possible consequences of non-appearance. On the other hand, the accused need not be furnished with all the evidence -- the presence of counsel is deemed sufficient. If the accused only fails to appear for sentencing, having been notified, he is treated as if he had been present; in other cases the sentence is expressly notified, 219, and in this case there is of course no 30 days limit. It was expressly considered that the relevant European and UN Conventions would not be infringed by the amendment.(28)
Criminal proceedings cease automatically with the death of the accused. If a binding decision entailing economic sanctions has not been executed at the offender's death, the court may at the behest of the prosecution decide to execute a confiscation order, Penal Code 97 b; it would be repugnant to natural justice to let the heirs enjoy the proceeds of a crime. Also, in case of criminal tax evasion, the Inland Revenue may demand a supplementary tax from the estate of the offender, Tax Control Act 43.
There is no ordinary appeal from a judgment in absentia, 962, but a right of review, if the defendant makes it probable that his non-appearance was in fact excusable, 987.
5. Trial against the Mentally Incompetent
The parties may agree upon a mental examination of the accused. If they fail to agree, or the accused is detained (the normal case), a court order is mandatory, 809. The examination may be carried out 1) by committing the accused to a mental hospital for the duration (by court order), 2) during ordinary detention; or 3) at large. The examination is invariably carried out by experts in the public service, and in many cases, at least all serious cases, the report is submitted to the National Medico-Legal Council. Only in extreme cases the expert is called as a witness, and parties do not initiate examinations of their own, although it is not prohibited in law.
A mentally incompetent person can be tried, and the case is conducted along normal lines, (29) except that 925-trial is imposssible, as a confession cannot be given the same importance as that of a competent person (however, a potential jury case may, if the accused confesses, be tried by lay assessors instead of jury, 925 a).
6. Interpreters and Translation
Whereas Danish is of course the language of the courts, parties without the command of the Danish language are heard with the assistance of an interpreter in a language which he understands, 149, but not necessarily the language (or dialect) of his own choice, e.g. a foreigner having spent a life-time in Denmark may not necessarily be furnished with an interpreter, and if a foreigner, whose mother-tongue is the dialect of a very small tribe, enjoys the command of e.g. English, an English interpreter will be assigned.(30) It is a normal question of proof, which language the accused understands. The costs of translation are always borne by the state,(31) also upon conviction (whereas the convicted defendant may be obliged to refund the fee of the court-appointed counsel).
The entire testimony is normally translated, arguments of counsel in my experience more often than not only in the main outline. The oral sentencing is always translated. Of course an interpreter is present, when the accused alien is interrogated by the police. An application from defence counsel for the reimbursement of reasonable costs to an interpreter during conference before the trial between defendant and counsel will normally be granted; however, a sensible attorney asks first.
As for documents it is generally held that the bill of indictment must be translated,(32) and in my experience -- I have a great number of cases involving aliens, as the biggest Red Cross refugee centre is placed in my jurisdiction -- the prosecution always sees to that. The accused cannot claim translation of the case file, but the Supreme Court has decided that the judgment in a jury case, the courts' record of the trial, and the documents directly produced in court be translated free of charge.(33) In a case where the judgment in concreto was very short, as are all judgments in jury trials, and the punishment very severe, 8 years imprisonment and deportation for life, I would not consider myself bound to order translation to the same degree in a petty case with a longer written judgment. However, the conclusion of the judgment must, upon demand, always be translated.
7. Right to Call Witnesses
Both sides may call witnesses. Since 1971, both sides may protest against the list of evidence offered by the other side, 837. The court may reject the evidence for reasons of both legality, potential untrustworthiness, and expedience.(34)
In a drug case the Supreme Court rejected (35) the prosecution's wish to hear a co-suspect, as his plea-bargaining agreement entered in the U.S.A. was of a nature to render the acceptance of his statements unadvisable, i.e. on grounds of potential untrustworthiness.
Expediency was the issue in three cases where the prosecution successfully protested against the defence's wish for (further) witnesses. In a drug case before a jury the High Court refused to call two witnesses from Nigeria because of enormous practical difficulties and dubious relevance; the Supreme Court refused to quash the conviction and sentence.(36) In a case concerning fraud against 804 customers, the court rejected the defendants' claim that all complainants be heard plus an unspecified number of non-defrauded customers; when the case, the well-known Hauschildt case, was later for other reasons brought before the European Court of Human Rights, A.4 above, this point was not included.(37) Finally, in a recent case the High Court convicted a "kapo" from a concentration camp in former Yougoslavia of gross torture against prisoners and sentenced him to 8 years imprisonment, violation of the Geneva Convention of War Crimes being assumed. Defence counsel, who argued mistaken identity, had demanded the hearing of eight witnesses from the area in question, while the prosecution, having sought the witnesses in vain, protested against further adjournment, which the court refused. At the same time the court allowed the defence to read aloud otherwise inadmissible statements made to the police, D.8 below. The Supreme Court affirmed the decision.(38)
8. Right to Examine Adverse Witnesses
When the party calling the witness has finished the examination-in-chief, the other party is entitled to put questions to the witness, 183.(39)
The principle that witnesses ought to testify directly before the adjudging court is protected, 174, but no express rule prohibits hearsay evidence. However, as the courts tend to be sceptical of second-hand statements, the parties especially the prosecution will always attempt to produce direct evidence, when possible.
Documents containing statements made in court by the accused can be admitted directly -- no need to call the judge or others as a witness -- when the accused defaults, refuses to answer, or changes his statement as are statements made in court (the same or another) by witnesses now unavailable, when the witness changes his statement, or refuses to answer and coercive measures are ineffective or refrained from by the court, 877. Also, documents made in furtherance of a public duty may be admitted directly, e.g. description of the scene of crime or of an accident made by the policeman on the spot; the accused's criminal record is admitted in virtue of that clause.
The difficult question is statements from others in the police reports, copies of which are always in the court file and handed to both parties. When the accused or witnesses change their story, the questioner may put the former statement to them and, if vital, call the policeman as a witness. Direct quotation as surrogate for the witness can only be permitted by the court under exceptional circumstances, e.g. in the case described at note 38.
Children complainants of a sexual offence are often questioned by the police before a video camera. Counsel, but not the accused, is present in an adjoining room, able to follow the questioning, and has the opportunity to suggest to the police to put additional questions to the child. At the trial the video film is sometimes admitted into evidence instead of calling the child as a witness, at least when the child is very young (in practice about 10 years or less) or mentally disturbed.(40) As to the impact of the Unterpertinger case, see A.2 above. The majority of authors agree that the practice of admitting video films of childrens statements is not in violation of the European Convention.(41)
If a witness or co-defendant feels at risk from the accused or others, the court may remove the defendant from the courtroom, 848, clear the court, 29, or remove individual spectators, 32. However, the accused must be informed not only of the content of the statement, but also of the identity of all witnesses. While a Supreme Court judgment in 1984 accepted an anonymous witness, that is anonymous to the accused but known to the court and the defence counsel,(42) such evidence has been prohibited since 1986, see also B.3 above. "Identity" does not include the place of dwelling of the witness. During a big drug case I have allowed a female accomplice, who had later changed her name, to testify under her former name. The question of anonymous witnesses and witness protection programmes is still hotly debated.
The court decides whether a reluctant witness should be coerced, which may in an extreme case include incarceration up to 6 months, 178. On the other hand, defence counsel's attempt to force the prosecution's hand by calling a witness which the prosecution does not wish to produce, may well be stopped by the court, D.7 above.
9. The Presumption of Innocence
The assessment of evidence is free, 344 (civil cases), 896 (criminal cases). The judgment must be based solely upon the evidence adduced -- directly or, according to law, indirectly -- at the hearing, 896 and above concerning 877.
The degree of proof is not codified, but in criminal cases the principle in dubio pro reo or certainty beyond reasonable doubt is settled practice.(43) There is probably a tendency to accept a lower degree of certainty in petty cases, e.g. traffic violations, than otherwise. In principle, in dubio pro reo is applied to all issues, but in practice the defendant has, if not a burden of proof, then "a burden of explanation", if I may coin a phrase, when an affirmative defence is raised. If the defendant puts forward a defence of e.g. self-defence or alibi, adducing only the flimsiest of grounds, the prosecution's burden of proof is correspondingly light. If, however, the defendant makes a reasonable showing, the principle is again applied. In dubio pro reo is not applied to questions of law, including legal standards, or circumstances adduced in pure mitigation.
In civil cases, the degree of proof required is the balance of probabilities. A party's silence or passivity in face of intimations to answer may be used in evidence against him, 344, an express rule not recurring in criminal justice.
When the victim's claim for e.g. damages is joined to the criminal case, D.12 below, the criminal court must apply the standard of proof required in civil cases. If that implies a probable conviction in the civil court, whereas the defendant is acquitted in the criminal case, the civil claim is not adjudged, but referred to the civil court, 992.
As to the question of preventing public authorities from manipulating the media or the system see B.2 and D.2 above.
10. Witnesses in Civil Suits
Either party to a civil suit may call witnesses. If a party does not bring the witness informally, the court will issue a subpoena, 175. The costs of calling witnesses are borne by the relevant party, 311, possibly with the right of reimbursement from the adverse party, 312. In case of legal aid the public purse will pay the costs.
Evidence without importance to the case is to be excluded, 341. There is a great body of case law on this. As a rule the adverse party must be notified of witnesses at least one week before the trial, 340 which entails that the delayedly -- or not at all -- notified evidence may be rejected out of hand. The court is entitled to allow the evidence in spite of the delay.
11. Exclusion of Unlawfully Obtained Evidence
In later years this question has been debated more often than before,(44) and some authors and defence counsel advocate the exclusion of such evidence. In practice, however, the point is raised extremely seldom, and the point of departure remains the principle of material truth i.e. there is a presumption that the evidence in question will be admitted. If willful arbitrariness were seen to be prevalent in police practice, exclusion might well be applied more often, but as long as the illegality consists of mistakes in form, exclusion will not be applied. Also, rules, especially those concerning search and seizure give considerable leeway to the police, above all when the purpose of the measure would be endangered by the delay involved in obtaining a warrant, 797, and the temptation to cut corners does not arise.
This is one of the main bones of contention between common law and civil law systems.(45) A recent decision illustrates the point. While stables may be entered by e.g. a district veterinary and the police for purposes of inspection under almost no formal rules, such steps must be undertaken according to the rules of search, if made to gather evidence for a criminal case. Twice within an interval of 5 months a pigsty had been entered into by the police and the veterinarian without the warrant and without -- this was the important part -- subsequent notification to the court within 24 hours. At the trial the local court and the High Court threw out all evidence from these searches, which was all of the evidence in the case, but the Supreme Court reversed the decision on grounds that the police officer had committed a mistake and not an intentional violation. Also, the evidence could have been obtained legally and was of paramount importance.(46) The defendant was convicted of maltreatment of animals.
More important is the case of evidence obtained not unlawfully, but accidentally, and where the evidence could not have been obtained legally by the means employed (German "Zufallsfunde"): wire-tapping can only be applied with the consent of the court and only for the investigation of certain serious crimes, e.g. drug cases, but not burglary, 781. If lesser offences are (also) disclosed during tapped conversations, the tapping itself cannot be admitted in evidence during the trial for such offences, 789. On the other hand, the police are expressly authorized to use the evidence for the purpose of further investigation and to adduce such derivative evidence; "the fruits of the poisonous tree"-- doctrine is thus rejected, see also A.2 above.
12. Victim Participation
The victim of rape or other serious crimes, especially against children, has on demand the right of a court-appointed lawyer, 741 a. Also, if the case so warrants, the court may on demand assign an attorney to the victim of lesser sexual offences and offences of bodily violence. The victim must be informed of that right, 741b. The attorney assigned has the right of presence during the questioning of the complainant and the right to put questions to the victim during the trial and to argue the question of compensation, 741 c.
When a wrongdoer has by the same act committed a crime and caused a tort, which is extremely common, the injured party has the option of either instituting proceedings in the civil court or presenting his claim in the criminal court, 991 et seq. and special statutes especially the Road Traffic Act 111 et seq., the so-called adhesion process (like the French "porter plainte de partie civile"). This latter course is often chosen as no court fees have to be paid, and the assistance of a barrister is normally unnecessary as the prosecution is as a matter of duty bound to assist the injured party in presenting his claim. The judge may refuse to adjudge a very complicated civil claim, especially when no personal injury has occurred, and the criminal trial must not be delayed. Once the criminal trial is concluded, only claims according to the Road Traffic Act and the Dog Act can be tried in the criminal court, other claims are referred to the civil court. When a civil claim is included, the claimant has normally the right of presence (and of notification) and the right to argue his case.
Some offences can only be pursued by the injured party, not by the public prosecution service, especially libel cases, or only upon demand by the injured party to the prosecution service, such as intrusion of privacy, Penal Code 263 et seq.
In other respects the victim has no special standing. In this connection it may be added that the withdrawal of a complaint does not by law force the prosecution/police to stop proceedings (except for the cases mentioned where the complaint is a condition for the prosecution). However, the prosecution may well take the attitude of the victim into consideration when deciding whether there are sufficient grounds for filing a bill of indictment.
E. Composition of the Court
1. Independence and Impartiality of Judges
Judges are appointed for "life", i.e. until a fixed retirement age of 70, by the Monarch on the advice of the Minister of Justice.(47) In practice, the recommendation of one of the two High Court presidents is of great importance, as almost all candidates have at an early stage of their career been in training in a High Court. I know of no cases where political considerations, the political views of the candidates etc. have entered the field. The independence of judges is guaranteed by the Constitution 64; judges can only be retired or removed against their will upon judgment in "The Special Court of Complaints", whose members in those cases are ordinary judges appointed for a single term of 10 years, or during a general re-organization of the judicial system. Many small cases are in Denmark, as in Norway, in practice tried by not-appointed judges, younger lawyers in the courts' career system. Except for very special cases, this is probably not in violation of the principle of independence.(48) The European Court of Human Rights has had no case touching this problem.
A judge who has a personal interest in the case, is disqualified, 60 et seq. The question of impartiality came dramatically to the fore following the Hauschildt decision in Strasbourg, A.4 above. It is now settled law that a judge who has decided detention on grounds of a "particularly confirmed suspicion", is disqualified, contrary to the judge who has only assumed "justified suspicion". Also, a judge who has while adjudging other cases, in reality taken the accused's guilt for proved, is disqualified. Many judges consider that a judge can never try a case (except upon a guilty plea) against the accomplice of an offender already convicted by himself. I regard that view as somewhat exaggerated.(49) The problem is not decided yet.
2. Judge, Jury, and Lay Assessors
Criminal cases are, like Caesar's Gaul, divided into three parts:
1) Jury cases, 687 (about 100 per year): cases upon a plea of not guilty, where the prosecution demands 4 years imprisonment or more, except property crimes. Robbery is included, forgery is not. In practice only violent crimes, arson, drug cases, and that rara avis, political crimes, can be jury cases. The jury decides the question of guilt by majority, 8 votes (of 12) suffice for a verdict of guilty, 5 for acquittal, i.e. no hung jury. The court (3 High Court judges) may by majority quash a guilty verdict, causing a retrial, if the prosecution so decides, but an acquittal is final. The sentence is decided by jury and court in common, the judges having 4 votes each. The jury is hotly debated,(50) but as the institution is directly mentioned in the Constitution 65, many authors consider that it cannot be modified radically, let alone abolished. Its scope has, however, been much diminished over the years.
2) Cases before a mixed court, 686 (about 11,000 per year), one judge and two lay assessors, deciding by majority i.e. the assessors can outvote the judge, all matters without exception, including questions of law and sentencing: cases on a plea of not guilty, where the prosecution demands a prison sentence, actual or suspended. Cases about aliens' illegal entry and almost all road traffic cases, even when prison is demanded, are excepted. See also D.5 above concerning the mentally ill, 925a.
3) Cases before a single judge (about 60,000 per year): cases upon a guilty plea, so-called 925-cases, A.2 above (this sub-group about 10,000 per year), cases excepted from 2), (almost) all cases concerning a fine only.
When the formal conditions are fulfilled, the case falls automatically into the relevant slot. A choice is relevant when a plea of guilty according to 925 or 925 a is considered. Also, in exceptionally important cases involving a fine the court can establish a mixed court ex officio or upon request, which usually happens in cases of involuntary manslaughter, of medical doctors' criminal negligence, and of incitement to racial hatred, but otherwise hardly ever.
A lay judge must be a voter for Parliament, i.e. a Danish subject, between the age of 18 and 66 years at appointment, of good character, in full bodily and mental health, 69. Employees of the central departments, of the courts, the prosecution service, the police, the prisons, attorneys and attorneys' clerks, ministers of the National Church and the recognized religious communities are automatically excluded, 70. Upon request are excused i.a. members of the armed forces, customs office employees, postmen, firemen, medical doctors, midwives, pilots, those of 60 years or more, plus hardship cases, 71.
A committee of members of the local councils, one committee per municipality, selects a number of prospective lay judges according to population, 72. The two High Court presidents draw by lot and make a) a list of lay assessors for each jurisdiction, each list consisting of persons residing in the jurisdiction, b) a list of lay assessors and jurors for the High Court itself, 74, at the same time deciding questions of exclusion from the lists, 76. The lay judges serve for 4 years, their number fixed so that every lay judge is expected to serve four times per year.
The important point about the appointment of lay judges is that the basic lists are made out by selection, not drawn by lot.(51) Even though the Ministry of Justice has exhorted the committees to attempt a cross-section of society, Danish lay judges are without doubt far better qualified than if they had been drawn by lot. Also, though being a lay judge is in theory a civic duty, no one is in practice appointed against his will. There is in practice an equal number of men and women.
Before every case with lay judges the personnel of the court appoint the names at the top of the list, going downwards, beginning from the top, when the list is complete, 79, 88. In practice, an excuse covering the day in question is normally accepted, and when lay judges must be found at very short notice, the principle of rotation cannot always be strictly adhered to. This is accepted, but of course, "hand-picking" of lay judges is a violation.
Either party may claim bias, and if the judge or lay judge does not disqualify himself, the question is decided by the court, 62 et seq. If, on appeal, the High Court considers that the (lay) judge in question ought to have been disqualified, the judgment will probably be quashed, 946, 960, and a re-trial decreed. Before each trial the judge will -- in chambers, not in open court -- ask the lay judges, whether they know the accused or other parties, and whether bias may be assumed, 66. In jury cases either party has by law two peremptory challenges (four in political cases), 81. In practice, parties, especially defence council can only make a vague guess based on name, age, gender, and occupation (which is disclosed on the lists). "Voir dire" is unknown in Denmark, and jury selection is definitely not a specialized science. There is no right of challenge in cases before a mixed court.
A few criminal cases are tried in the Maritime and Commercial Court in Copenhagen with a learned judge and four lay judges chosen for their specialized knowledge. However, those cases do not include serious fraud cases, which are tried by ordinary mixed courts (never with jury, see above).
All civil cases -- except housing cases, where two lay assessors represent, respectively, house-owners' and tenants' organizations, and cases tried in the Maritime and Commercial Court -- are tried by learned judges alone, one in the lower court (the immense majority), three in the High Court. The Faroe Islands have jury cases as in 1) above, but all other cases are before a single judge without lay assessors. In Greenland the huge area and the small (about 50,000) and scattered population make special rules necessary. There is one High Court judge, appointed by the Monarch like other Danish judges. The High Court judge appoints one lay magistrate per district (for 4 years, reappointment possible), who must be of good character and a voter. The local councils appoint lay assessors on recommendation from the High Court. All cases, civil and criminal, are tried in a mixed court, with one magistrate and two lay assessors. The High Court is a court of appeal and gives guidance to the magistrates. Very difficult cases may be referred directly to the High Court, again as a mixed court.
F. Decision, Sentencing, and Punishment
1.-2. Reasons in Criminal and Civil Cases
The courts must give grounds for all judgments, 219. Dissenting opinions are accompanied by their own reasoning, and the judges are named singly, except when lay judges are members of the court. Grounds must also be given for interim decisions characterized in the Code as Orders ("kendelser").
In criminal cases the sentence must state the exact rule offended against and the offending acts considered proven; a reference to the bill of indictment may suffice. Further grounds are not given in jury cases, 911, but must be given in other cases, 929. The lack of grounds given in jury trials is a main factor in the attacks on the jury. Some judges now give detailed grounds when concurring with a jury verdict of guilty, which is to be recommended.
The most important "orders" in criminal cases, where grounds must be given, concern coercive measures, such as detention, 764.
Danish courts are criticized by almost all authors for the brevity of grounds given, probably rightly.(52) Norwegian judgments, especially Supreme Court decisions, are far more informative.
3. Double Jeopardy
The Court of Complaints may grant review at the request of the Attorney-General after acquittal or conviction for a lesser crime than charged, 976, when the accused later confesses -- no best-seller "How I got away with murder" -- when very strong new evidence emerges ("new" meaning that the prosecution could not possibly have known about it before), or when the decision was caused by perjury, false documents etc., including offences committed by participants of the trial such as defence counsel. Such reviews happen extremely rarely, in later years only on grounds of a later confession.(53)
Mistrials are very rare, as the court of second instance may omit to quash a judgment in case of an error of procedure or form, unless the correct procedure presumably would have caused a different result, 946, 963, 966.(54) The rationale is that the liberal system of appeal, discussed in G. below, allows the court of second instance to try the case, as it were de novo, thus repairing the fault committed in the court below.(55) The majority of cases, where a mistrial has been decreed, concerns bias, E.1 above, especially after the Hauschildt case. After a mistrial there is no second trial, if the case ought to have been dismissed at once, 960, but otherwise the accused can only avoid a second trial, if the prosecution now decides to halt proceedings.
If during a jury trial the court sets aside a verdict of guilty, E.2 above, the prosecution also decides whether to initiate a second trial, but in these cases proceedings are often stopped, as the reaction of the court presages an acquittal.
If the Court of Complaints grants a new trial, it means a new trial, 982, not an automatic acquittal or dismissal.
4. Ex post facto Laws
The Danish Constitution does not -- unlike e.g. the Norwegian -- prohibit ex post facto legislation, but the Penal Code 1, according to which only acts punishable by law are liable to punishment, implies such prohibition.
The judicial purge after the German occupation in the Second World War against traitors, collaborators etc. was carried out partly on the basis of ex post facto laws, including re-introduction of the death penalty, the justification being that the necessary legislation could not have been passed during the occupation.
If the law has been changed between the commission of the offence and the trial the new law is applied, Penal Code 3, but the decision cannot be severer than a hypothetical conviction after the old law. If an offence is no longer an offence, there is no punishment, unless the change had nothing to do with the guilt; this borderline may on occasion be tricky. When pornography was decriminalised, no one was punished for older offences, and even final sentences lapsed, if not served, but when temporary restrictions on the use of petrol during the oil crisis of 1973 were lifted, pendent cases were carried through to conviction.
5. Debtors' Prison
There is no imprisonment for failure to fulfill a contractual obligation, but in case of non-payment of fines and -- very rarely -- alimony imprisonment may ensure.
6.-7. Publicity of Judgments
Judgments are in both criminal and civil cases always rendered in open court, 29, but a transcript of the judgment presupposes a legal interest, 41. A newsreporter does not necessarily have a legal interest.(56)
8. Collective and Vicarious Criminal Liability
Collective punishment is unknown in Danish law. On the other hand, the rule and practice of the courts as concerns complicity, Penal Code 23, are strict and may on occasion encompass rather passive behaviour. As each defendant must be considered individually, this is not to be confused with collective punishment.
Vicarious criminal liability presupposes express legislation and is unknown in the Penal Code, which encompasses the classic crimes. Outside the Penal Code, however, about a hundred statutes expressly create the possibility to punish a limited company as such. Both in theory and practice it is accepted that such penal liability does not necessarily imply personal guilt in the board of directors, but may be imposed for underlings' faults, including "anonymous" faults, i.e. without disclosure of the actual perpetrator, and cumulative faults, i.e. faults consisting of acts by themselves innocent and only harmful when added up. In some acts the penal liability of a municipality or even the state is mentioned. In a few acts the punishment of the owner of a business, an employer, by the imposition of a fine (without an alternative prison term) is permitted without proof of guilt, an actus reus without the mens rea.
9. Death Penalty
The death penalty was abolished for common crimes by the new Penal Code of 1930 (last execution 1892), re-introduced in 1945 for certain grave crimes committed during the Occupation (78 sentences, 46 executions 1945-50), and finally abolished in 1978.
10. Cruel and Excessive Punishment
The Constitution is silent on this point. There is absolutely no doubt that cruel and excessive punishment is never applied. Torture and mutilation is not permitted. Life imprisonment exists, but is rarely applied.
"Chemical castration", removal of the sexual urge by medical means, is mooted in the public debate every time a former offender on expiry of a prison term commits a grave sexual offence, especially against a child. In that case the offender may be sentenced to indeterminate detention, Penal Code 70, and parole may be dependent on his willingness to undergo treatment. I have had a very drawn-out case of such a kind. However, the prisoner has the choice.
11. The Influence of Behaviour during the Trial on the Sentence
The accused's behaviour and way of defending himself can never cause a more severe penalty. Of course the accused's choice of defence may indirectly influence the penalty. As guilt and sentence are normally, except for jury trials, decided simultaneously, a defence based on e.g. alibi precludes an argument in mitigation based on provocation. But that is another story.
It is a moot and currently much debated point to what extent the accused's cooperation may be regarded as a factor in mitigation. A plea of guilty and willingness to a 925-trial, A.2 above, does not directly entail a less severe penalty;(57) but if the prosecution also accepts a 925-trial, waiving proceedings where the accused denies his guilt, the net result may well be a less severe penalty than if the accused denied completely and were convicted on all counts. Thus the accused's behaviour is of possibly significant importance. Cooperation tending to the disclosure of accomplices may cause a marginally less severe penalty, especially in big drug cases.(58) Currently representatives of the prosecution have advocated a system of plea-bargaining as an extra incentive for minor accomplices to speak out.
G. Appeal or Other Review in Higher Courts
1. Criminal Appeals
Upon conviction in a lower court the defendant may appeal on all questions without exception, fact, law, sentence (of course he may limit the appeal to the sentence, especially when he has pleaded guilty). In case of a full appeal the witnesses will be heard again in the High Court, except if both parties agree to a transcript of the record of the court below as direct evidence. The High Court is sitting with 3 judges and 3 lay assessors, when the lower court was sitting with lay assessors, and in 925-cases. If the penalty does not exceed 20 day-fines or a flat fine of 3,000 kr. (day-fines are used in cases according to the Penal Code, flat fines in all other cases, e.g. road traffic cases), the defendant can only appeal with the permission of a special Board of five members (3 judges, 1 attorney, 1 university professor), 962. If the accused was convicted in absentia, D.4 above, there is no appeal, only special review.
The defendant need not file a written notice of appeal, but may appeal orally immediately upon sentence. The appeal must be made within 14 days; the High Court may allow a later appeal, but only rarely does it do so.
A judgment upon a jury verdict can only be appealed to the Supreme Court on questions of law and as to the sentence. The lack of opportunity to appeal on questions of fact in the most serious cases and those cases only has been criticized,(59) and there is no doubt that the comparatively great number of hopeless appeals on questions of law and equally futile applications to the Court of Complaints are to be regarded as a substitute for the failing appeal on fact.(60) As for special review, see I below.
In other cases the Supreme Court is third instance, and an appeal is only possible with the permission of the Board mentioned above, which permission will only be granted when the case involves questions of principle or circumstances are exceptional, 966. The judgment can only be appealed on questions of law and as to the sentence, the rationale being that the Supreme Court does not hear witnesses, and a court without lay members ought not to set aside findings of fact made by a court with lay judges. The Board mentioned was established by an amendment of 1995, operative from 1st January 1996; previously the Ministry of Justice was competent.
There is always right to counsel in cases on appeal and review, in the latter case when a retrial has been granted. For details, see C.1. and 3. above.
The prosecution has the same right as the accused to appeal or seek review -- as for double jeopardy see F.3 above -- in ordinary cases in the second instance, also on questions of factual guilt, i.e. upon acquittal. The right is vested not with the Chief Constable as prosecutor in the first instance, but the Regional Prosecutor (of course on referral from the Chief Constable), who also conducts the case in the High Court. While the actual punishment limits the accused's right to appeal as stated above, the prosecution may appeal freely in all cases where higher punishment than fine and confiscation is possible in law for the alleged offence (in other cases only with permission from the Board), irrespective of the actual outcome of the trial in the first instance. As a consequence of the objectivity principle, 96 and B.2 above, the prosecution is entitled to appeal in favour of the accused, 941.
In practice, the prosecution attempts to ensure that only meritorious appeals are entertained, and only about one appeal in ten originates with the prosecution. The prosecution is, however, entitled to join its appeal to the accused's appeal (and has a new delay of 14 days from the first appeal, 949). Many a frivolous appeal from the accused has triggered off a stiffer sentence in the second instance.
A judge having heard the case at the trial level, cannot sit on the court hearing an appeal or review.
2. Civil Appeals
From the lower court to the High Court the appeal is free except when a case concerns a monetary claim of less than 10,000 kr., 368; in cases involving questions of principle or exceptional circumstances the Board may allow the appeal. The appeal from the High Court as the court of first instance or from the Maritime and Commercial Court to the Supreme Court is free. The appeal from the High Court as court of second instance to the Supreme Court requires the permission of the Board, 371, which can only be granted when questions of principle are involved.
3. Intermediate Decisions
Such decisions made during the early stages of a criminal trial may be appealed, e.g. concerning detention, search and seizure etc. During the trial proper or the immediate preparation of the trial intermediate decisions may only be appealed when they concern coercive measures or they decide the postponement or dismissal of the case, 968. Whereas a decision to postpone the trial at the behest of one party (either party), to allow the calling of extra evidence may be appealed, the court's refusal to postpone in the same situation cannot be appealed, the rationale being a wish to promote speedy trials.
In practice, appeals have been allowed even in those cases, when the decision was of vital importance, e.g. when consideration involving the European Convention of Human Rights may determine whether the prosecution shall be allowed to produce evidence, without which the case collapses.
In civil cases almost all intermediate decisions may be appealed, 389, except a decision on costs at less than 10,000 kr., where permission from the Board mentioned above is required. The appeal will only entail the stay of the trial when the court so decrees, 398.
H. Pardon, Amnesty, and Expungement
1. Pardon and Commutation
Pardon is a Royal Prerogative according to the Constitution 24, on the responsibility and with the countersignature of the Minister of Justice. Lesser cases are delegated to the Minister of Justice or even -- fines -- to the police. A petition for pardon normally entails a stay of execution, 1001, except when the petitioner has already begun serving the sentence.
Pardon is in practice granted extremely rarely, as deserving cases are "weeded out" by use of suspended sentences, parole (normally upon expiry of two-thirds) etc. Release from life imprisonment always requires a pardon, as there is no possibility for parole. In later years, prison sentences in cases of drunken driving are often commuted conditionally, when the convicted person undergoes a cure against the (mis)use of alcoholic beverages.
2. Amnesty and Expungement
Amnesty -- here understood as collective pardon -- has in earlier times accompanied the accession of a new King, a joyous conclusion of a war, and existed as late as 1946 after the Occupation, but it is now obsolete.
Expungement of the decision from public records is unknown. On the other hand, quite stringent rules restrict the inclusion of old decisions in transcripts from the records, dependent on (a combination of) 1) the convicted person's age (leniency towards minors), 2) the severity of the penalty, 3) the age of the decision, 4) the authority requisitioning (most leeway to the police and the courts). After ten years from the expiry of the sentence, about everything stays hidden in the records. At the convicted person's death or perhaps the age of eighty he is stricken from the police's records.
I. Other Remedies
1. Violation of Fundamental Rights
If such violation allegedly occurs during the course of a criminal or civil trial, a complaint can be made to the court. Otherwise a civil suit may be brought against the relevant authority, as according to the Constitution 63 the courts may adjudge questions of the limits to the use of authority. In practice, the Ombudsman is a very popular choice. In later years, complainants and the attorneys make increasing use of the European Commission/Court of Human Rights.
2. Suspension of Habeas Corpus
No such rules exist in Danish law.
3.-4. Compensation for Unjust Punishment and Deprivation of Liberty
The two questions are treated together, as the rules are identical.
In case of pre-trial detention without subsequent conviction -- not only detention, also arrest, even the shortest of arrests such as the two minutes necessary for stop and frisk -- or punishment following a conviction, later reversed, the person concerned is entitled to monetary compensation, both for actual losses (which must be proved) and for the injury in the very deprivation of liberty (no proof necessary), 1018 et seq.
Fault with the authorities is not a condition. If the detention etc. was, with the hindsight of later developments, objectively unjustified, even the most natural and inevitable detention conveys the right to compensation. On the other hand the complainant may have acted so incautiously that he may be deemed to have brought his sufferings upon himself, not unlike the contributory negligence known from the law of torts. In those cases compensation may be reduced or refused altogether.(61)
Compensation cannot be refused on grounds that suspicion still adheres to the accused; that ground was abolished in 1978. The complainant's innocence must be taken for granted.
The accused must within two months from notification of the dismissal of the case or from the final judgment present his claim to the prosecution. Probably a majority of all claims are settled amicably, as the Attorney-General pays meritorious claims at a fixed scale, regulated periodically (in 1996 fixed at 3,800 kr. for the first day of deprivation of liberty, 450 kr. for each subsequent day, more when detention in isolation, less for short arrests, only a nominal amount for an extremely short arrest, 700 kr. for a search without an arrest). If the prosecution refuses to pay the amount demanded, the claimant can within two months from the adverse decision demand that the matter be tried in court, i.e. the criminal court with lay assessors. Counsel is always appointed for the claimant. The position of the latter is weakened in practice as the courts have accepted that the compensation be set off against unpaid costs in older cases. An old jailbird, who is acquitted after a long series of convictions, will thus never see the compensation awarded for a possibly unjustified period of detention.
There is no compensation just for the accusation or for the loss of time spent in court. A civil suit may also be instituted, but as success presupposes fault with the state's agents, it is very seldom attempted, if ever.
5. Habeas Corpus etc.
Outside the very detailed rules of detention, A.4-5 above, there are in criminal cases no rules corresponding to habeas corpus etc. -- but the courts may adjudge on questions of administratively decided deprivation of liberty, e.g. in mental hospitals, 468 et seq. -- unless by the question is meant the incarcerated prisoner's right to have his case re-opened, even after final judgment. This is regulated in 977, according to which the Court of Complaints may at the request of the convicted person grant a re-trial ("Wiederaufnahme" in the German sense), 1) when new evidence is discovered which presumably would have caused acquittal or conviction on a lesser count ("presumably" being much weaker than the corresponding term in 976 on the prosecutions right to a retrial, F.3 above, implying an easier road for the defendant), 2) when serious misconduct by participants of the trial presumably may have caused the conviction, or 3) when in exceptional cases there is deemed to exist a preponderance of probability that the first decision was wrong (of course, at this stage the claimant cannot claim a presumption of innocence).
There is no time-limit to an application adducing 1) or 2), but 3) must be claimed at the latest five years after the final judgment or two years after release whichever is longer, 979.
The vast majority of applications are dismissed summarily, but some cases are retried according to 1) and extremely rarely 3), almost never 2).
In 1990-91 the Court of Complaints refused retrial on the ground that the same judges had in 1981-82 during the first trial both detained the accused on "particularly confirmed" suspicion and tried the case at the trial proper (retrial was granted on other grounds in the plural, as two judges adduced 1) and one 3), while two dissented!), the complainant's point being that in the mean-time the Strasbourg court in the Hauschildt case had stated that such a tribunal is not impartial, A.4 above. The Court of Complaints merely noted that there was no fault of procedure, as the law was applied at the time. New doctrines of procedure thus have no retroactive effect, even when extending the rights of the accused.(62)
J. Procedures for Juveniles
1.-3. Juveniles in Criminal and Civil Proceedings
Juvenile courts are unknown in Denmark; cases involving juveniles are tried in the ordinary courts.
Waiver of prosecution, even where there is sufficient evidence for conviction, is possible in Danish law, which thus follows a modified principle of opportunity or expediency.(63) One ground for such waiver is the offender's age, less than 18 years, at the time of the offence, 722, 723. The waiver is very rarely absolute, but normally conditional on supervision under the local welfare department or the compounding of a fine, possibly also acceptance of a compensation order. Most waivers must be approved by the court, where the juvenile must also make a confession. The legal guardian must approve the fine and the compensation order. A waiver cannot be claimed as of right, and in case of serious crimes or new offences after a waiver a minor will be sentenced in the ordinary form, although less severely than adults, Penal Code 84. With effect from 1st January, 1997, the consent of the guardian to 925-trial is no longer necessary. There are no special procedures for speedy adjudication of cases against juveniles, but in practice speed is attempted.
4. Corporal Punishment
Corporal punishment does not exist in Denmark.
5.-6. Segregation of Juveniles in Detention
Detained juveniles are mostly placed in approved schools, "Borstals" (albeit in a closed ward), see also A.4 above, but in some cases placing in an ordinary jail is inevitable, e.g. when the juvenile's conduct is too violent for the approved school. According to the UN Convention on Childrens Rights art. 37(c) minors below the age of 18 must, if deprived of liberty, be segregated from adult prisoners. Juveniles in jail are therefore placed in a special ward, which entails a very unpleasant régime as they are so few that a state of isolation is almost the consequence. During the process of ratification of the Convention it was seriously considered to make a reservation to this article, but in the end it was decided that such reservation would be a detrimental "signal" to other countries with perhaps less humane prisons, and the reservation was not made. The consequences were, unfortunately, as feared. The whole episode is a good example of a painful ethical dilemma.(64)
K. Military Courts
1. Military Courts Compared with Ordinary Courts
The Code of Military Procedure (Mil.Rpl.) states that the ordinary Code of Civil and Criminal Procedure, "Rpl.", is applicable, unless otherwise expressly stated.
The most important difference is that the armed forces have their own small corps of prosecutors, "auditører", which replace the ordinary prosecution service. The courts are, however, the ordinary criminal courts;(65) as two big garrisons (including the Royal Guard) are placed in my jurisdiction, and the so-called garrison venue (on venue, D.3 above) is often applied, Mil.Rpl. 6, I have a significant number of military criminal cases, even arising out of offences committed overseas, e.g. during UN Peace-Keeping Missions.(66)
A court of investigation consisting of navy or army officers may be established in case of necessity -- e.g. out of regard to the need to bring the offender before a court within 24 hours from arrest -- on a ship of war not in home waters, in Greenland, and in military units serving abroad, Mil.Rpl. 27,28.
While the ordinary police may propose to the accused to compound a fine without taking the case to court, 931, in practice an extremely important rule, the military prosecutor and the "chief tribunal officer" (Mil.Rpl. 9, in reality the commanding officer) may propose a reprimand, a fine, or up to 30 days imprisonment, Mil.Rpl. 29,30 (in time of peace the competence of the chief tribunal officer to propose deprivation of liberty is very limited). The accused may appeal to the court, Mil.Rpl. 34, which in time of peace suspends the penalty until conviction.
2. Procedural Protection in Military Courts
Detention and arrest (A. above) may be applied to the same extent as in ordinary criminal cases, but also for the safe-guarding of discipline, Mil.Rpl. 15,18.
Counsel (C. above) is appointed as in ordinary cases plus in all cases concerning an offence against the Military Penal Code, Mil.Rpl. 12, even when only a fine or a reprimand is demanded. A serving member of the armed forces may act as counsel.
Access to the trial (D.2 above) may be prohibited when necessary for the purpose of military secrecy, Mil.Rpl. 5. All other rules under D. are unchanged.
In cases concerning offences against the Military Penal Code lay assessors are only employed, when the offence carries a maximum penalty of at least 2 years imprisonment (in time of war 4 years), Mil.Rpl. 4. All other rules under E. above are unchanged.
The rules described under B. plus F.-J. are unchanged.
3. Civilians and Military Courts
Apart from the fact that Denmark has no military "courts" as such, the military procedure encompasses some borderline cases such as discharged servicemen as concerns continuing military duties and, in time of war, camp-followers, chaplains, prisoners of war, medical personnel, and of course spies and traitors, Military Penal Code 5,6. Pure civilians can only be tried according to the Mil.Rpl., when their case is joined to that of a service-man, e.g. if a soldier has purloined goods belonging to the military, and a civilian has been a fence.
L. Emergency or Special Courts
Special courts with powers to convict and sentence are prohibited by the Constitution 61, but special courts of inquiry may be established, (Rpl.) 21 and 21 a. In later years a number of such courts have by vote of Parliament been established to ferret out the factual truth in great affairs of state. In 1993 as a result of the findings of a court of inquiry in matters concerning Tamil refugees, the then Conservative-Liberal coalition government was replaced by a Social Democrat-dominated government. Later, the central figure of the affair, the then Minister of Justice, was impeached according to the Constitution 59 before a court consisting of half Supreme Court Justices and half politically appointed though not ad hoc judges. On 20 June 1995, he was convicted and given a suspended prison sentence. The many constitutional and legal problems -- including alleged violations of the European Convention of Human Rights -- cannot be treated in this already too long report.
Courts of Inquiry have been criticized and may well be replaced by other modes of investigation, a matter now under consideration.
M. Administrative Courts
Denmark has no system of administrative courts with competence to adjudicate matters. In the administrative system there are many boards with quasi-judicial powers. A few are even called "courts", such as the "Tax Tribunal" (Landsskatteretten, "ret" = "court"), but that does not create a court in the real meaning of the term. Other hybrids are the "Labour Court", dealing with legal disputes between employers and workers; "Livestock Arbitration Courts"; "Land Tribunals", dealing with certain environmental questions; and the "Refugee Board", dealing with questions of asylum rights. All these have a mixed composition with both lawyers and laymen. In most cases sitting judges act as chairmen of the boards.
II. Conclusion. Global and Regional Human Rights Instruments in Danish Law
The Kingdom of Denmark has ratified both the European Convention on Human Rights of 1950 and the International Covenant on Civil and Political Rights of 1966, the two most important international instruments in the field of criminal justice. By virtue of the Act no. 285 of 29th April, 1992, in force from 1st August, 1992, the European Convention was directly transformed into Danish law.
In the field of practical criminal justice the Covenant of 1966 has never played an active role. It has only been cited in a couple of decisions and only alongside the European Convention. It can safely be left aside.
For many uears the Danish attitude to the European Convention was one of complacency. It was widely believed that Danish standards of fair trial were so high that our institutions would never be criticized. The first important complaint from a Danish citizen, the Schouw Nielsen case of 1957, was dismissed by the European Commission on Human Rights as being manifestly unfounded. From the mid-eighties and onwards the European Convention was being cited, suggesting that the Convention was being taken into account.
The first important judgment from the European Court of Human Rights, which opened the eyes of the Danish legal world, was the Unterpertinger decision of 1986. It was at once discussed in Danish legal journals and influenced Danish practice, see A.2 and D.8 above. The reason is the long-running Danish debate on the use of police reports at trial according to the difficult and complicated Rpl. 877. Methods which had largely been accepted by Danish courts, were now being questioned. Since then the decision -- and the relevant art. 6, sect. 3 d) of the Convention -- have often been invoked. Seen in the context of the later decision of Asch in 1991 it is the general impression that Danish practice on this point as modified is in conformity with the Convention.(67)
The second important judgment was the Hauschildt case of 1989, finding bias in a Danish judge who, having decreed detention on "particularly confirmed suspicion," later presided over the trial proper, see E.1 above. Both because Denmark was severely criticized for the first time, and because the practice involved had never been questioned before, the shock was great. Speaking personally in my capacity as both a practitioner who has to function in the altered framework and a participator in the debate, I consider the impact as beneficial and terrible at the same time. There is no doubt that the awareness of human rights and fair trial has been heightened considerably to the obvious advantage of Danish criminal justice, but at the same time the consequences taken especially by the Danish Supreme Court amount to an over-interpretation of the Hauschildt judgment. This is strengthened by the view that a dynamic development of the Convention is inevitable, i.e. that a national practice which earlier did not violate the Convention, may well be regarded as a violation now, for which reason it must be abandoned by the national court before being challenged in Strasbourg. In my view -- and I stress once more that I am in opposition to the ruling view -- the Court has interpreted the Hauschildt judgment not as an exception from a main rule of continued impartiality, but as a starting point for a whole new field of bias.(68) The most important development is undoubtedly the extension of bias to interlocking cases, where the judge risks being disqualified in later cases having convicted one of several accomplices.(69)
Whether Danish criminal justice is generally changed -- it could also be phrased, whether the overriding principle of pragmatism is in the course of being abandoned -- I cannot say for certain. The best answer is probably that in some fields there is a change, in others there is not. For example regarding the question of unlawfully obtained evidence, see D.11 above, there seems to be no change in the classical view. Whereas the courts, headed by the Supreme Court, tread their way carefully, radical opinion, especially defence lawyers, invoke the European Convention increasingly.
Civil procedure has felt the heat more than criminal justice because of some very unhappy cases that blatantly violated the right to speedy trial, although the parties themselves -- or, at least their lawyers -- have to carry a not insignificant part of the responsibility.(70) In future it will undoubtedly be the task of the civil court judges to abandon the practice of leaving the preparation of the trial fully in the hands of the parties and to take active steps instead. The Judges' Union and the National Bar Association have already agreed upon a draft proposal to increase the speed of civil trials. Also, the two High Courts now, of their own accord, attempt to expedite their oldest (up to 17 years!) pendent cases. In that field the influence of the European Convention is totally beneficial. Quite possibly there will be an overspill to the field of criminal justice, especially the question of length of detention.(71)
Overall, the influence of the European Convention on Danish criminal justice has been increasing significantly, not only directly, but also, and perhaps most important, in the general outlook of practitioners and theorists more than in particular decisions of the courts. The question of non-derogability of the right to fair trial does not seem of importance in the current Danish legal reality.
1. The following background information is necessary to understand subsequent references in the text. Sections are numbered as in the questionnaire.
The Code of Civil and Criminal Procedure (Retsplejeloven or "Rpl.", the normal abbreviation), originally of 1916 and in force from 1919, has latest been promulgated with amendments in 1992. In the text, reference to a paragraph, e.g. " 925" always means the Rpl., when not expressly otherwise stated.
The most important decisions are, since 1867, published in "Ugeskrift for Retsvæsen" (abbr. "UfR", roughly, "The Legal Weekly", decisions in part A, articles etc. in part B. "H" is "Højesteret", the Supreme Court, "Ø(L)" and "V(L)" "Østre Landsret" and "Vestre Landsret", the High Court for the Eastern (Western) part of the Realm. "D" is "Dom", judgment, "K" "Kendelse", judges order, interim ruling, a decision short of judgment.
The Kingdom of Denmark consists of Denmark, the Faroe Islands, and Greenland. Although the North Atlantic dependencies enjoy a wide extent of Home Rule, their judicial system remains part of that of the whole Monarchy, and decisions from the Faroese or Greenland courts can be appealed to the Eastern High Court or the Supreme Court. There are almost no differences between Danish and Faroese procedure - except for the language - more between Denmark proper and Greenland; I refer to E.2 below. Otherwise, only the system and practice of Denmark proper is treated.
2. The term is the same irrespective of the magnitude of the case, cf. e.g. Roach and Friedland, The Right to a Fair Trial in Canada p.11. On the other hand, there is no absolute limit for pretrial detention, cf. e.g. Dickson, The Right to a Fair Trial in England and Wales p. 17; Rzeplinski, The Right to a Fair Trial in Poland p. 8-9.
3. Lorenzen & al., Den europæiske Menneskeretskonvention med kommentarer (The European Convention on Human Rights commented), 1994, p. 86.
4. Grote, Protection of Individuals in the Pre-trial Procedure, p. 17-18 with summary of other reports. In England, the position now resembles partially the continental view, see Dickson (note 2), p. 10-11. In Spain, the position resembles the Danish, see Calatayud, The Right to a Fair Trial, p. 9. In Canada and the US the common law tradition keeps its ground, see Roach (note 2), p. 14 (but see "overtly"), Frase, Fair Trial Standards in the United States of America, p. 8.
5. The German position seems similar, see Samson, Questionnaire on the Right to Fair Trial, p.1.
6. Garde: Fra Unterpertinger til Asch. Den Europæiske Menneskerettighedsdomstols praksis om bevisførelse i straffesager (From U. to A. The Practice of the European Court of Human Rights Concerning Evidence in Criminal Trials). Juristen 1992, p. 341 et seq.
7. German law seems marginally different, see Samson (note 5), p. 2.
8. Different in English and German law, see Dickson (note 2), p. 26, Samson (note 5), p. 2.
9. Rt. (Norsk Retstidende, Norwegian Law Reports), 1994, 610 et seq.
10. Jørgen Aall: Rettergang og menneskerettigheter (Trial and Human Rights), 1995 (Norway), p. 223 et seq.
11. Hans Gammeltoft-Hansen, Varetægtsfængsling (Detention before Trial), 1976, p. 55, in: Kommenteret Retsplejelov (The Rpl. Commented), 5. ed., 1994, III, p. 102. The same author considers general statements about the necessary degree of suspicion problematical.
12. Gomard, Studier i den danske straffeproces (Studies on Danish Criminal Justice), 1976, p. 290.
13. Similar to French law. See Grote (note 4), p. 4.
14. Leigh, The Right to a Fair Trial and the European Convention on Human Rights, p. 17. I tend to disagree with Rädler: Independence and Impartiality of Judges, p. 5, that the distinction between the two cases is "tenuous". See also Frase (note 4) p. 42.
15. Similar to German law. See Grote (note 4), p. 4.
16. Wilhjelm: Tvangsindgreb i strafferetsplejen 1976-85 (Coercive Measures in Criminal Justice 1976-85), 1988, p. 165.
17. The detention ought not to exceed the expected penalty minus normal parole of one-third, UfR 1970, 746 HKK. The Supreme Court has in an atypical murder case with very lenient circumstances ordered the release from detention citing the European Letellier case, UfR 1992, 877 HKK. See also Grote (note 4), p. 12-13.
18. UfR 1984,137 VLK.
19. The problem whether the right to discovery covers the entire files, seems similar in Denmark and the US, Frase (note 4), p. 17.
20. The court often stipulates beforehand that an out-of-town lawyer appointed at the express wish of the accused will not be paid for loss of time and expenses of travelling. In that case the attorney is allowed to receive reimbursement for such expenses from the accused. Otherwise a court-appointed lawyer is prohibited from taking fees directly from the accused. The hourly rates paid to court-appointed counsel seem higher in Denmark than for example in the US. See Frase (note 4), p. 22.
21. The text only covers criminal trials. In civil trials, delays are more serious, partly, but not entirely because the preparatory stages are in the hands of the parties. Denmark was recently criticized in the European Court of Human Rights in a case where haemophiliacs had contracted HIV through blood transfusions, and the case was excessively delayed. See also Leigh (note 14), p. 11.
22. Neither will a violation of an important right entail the stay of proceedings as of law, see for Canada Roach (note 2), pp. 5 and 16.
23. Eva Smith: Straffeproces (Criminal Justice), 3rd ed., 1994, p. 22.
24. Garde & Høg: Strafferetlig forældelse på grund af passivitet - straffelovens 94, stk. 5, 2. og 3. pkt. (Limitation on Ground of Passivity - Penal Code 94.....). Juristen 1993, p. 57 et seq.
25. UfR 1982, 1022 H.
26. 26 UfR 1961, 580 H (also in UfR 1966, 596 H, murder and sexual molestation of a child, jurors from another district were employed at the request of the defence).
27. I agree with Leigh (note 14), p. 22, that except for petty cases counsel is a necessary condition for trial in absentia.
28. 28 Garde: Straffedom in absentia (Criminal Judgment in absentia). Tidsskrift for Rettsvitenskap, TfR (Journal of Jurisprudence), 1993, p. 5. I disagree with Marauhn, The Right of the Accused to be tried in his or her Presence, p. 10, that only minor offences not sanctioned with imprisonment should be liable to trial in absentia. The other cases mentioned by Marauhn -- disruptive behaviour, fugitives, express waiver -- apply to Danish law.
29. On the surface, Danish law is more severe to those unable to stand trial than US law, see Frase (note 4), p. 32, and possibly German law, Samson (note 5), p. 11. However, in a criminal trial also a mentally incompetent defendant enjoys the presumption of innocence, etc.. If the accused is already undergoing treatment similar to the expected outcome of the trial, a waiver of prosecution is usually preferred, Rpl. 722.
30. Thus held by the Norwegian Supreme Court, Rt. 1991, 1365.
31. Rpl. 149 was altered accordingly in 1990 in order to achieve conformity with the European Convention on Human Rights art. 6, 3, e).
32. Lorenzen & al. (note 3), pp. 202, 221.
33. UfR 1993, 321 H (judgment), later Order of 8th March, 1994.
34. Garde: Die Rolle des Richters bei der Beweisaufnahme im dänischen Strafprozess (The Rôle of the Judge in the Production of Evidence in Danish Criminal Procedure). Zeitschrift für die gesamte Strafrechtswissenschaft, ZStW 107, 1995, p. 1003 (Auslandsteil p. 189).
35. UfR 1982,1027 H.
36. UfR 1992,92 H.
37. Eva Smith (note 10), p. 108.
38. UfR 1995,838 H.
39. The sensitive point of the defences right to cross-examination of the complainant in rape cases about her prior sexual activity is resolved by Rpl. 185, whereby questioning tending to the general discrediting of a witness presupposes the leave of the court. See Roach (note 2), pp. 19-20.
40. Garde: Afhøring af Børn (Questioning Children). Nordisk Tidsskrift for Kriminalvidenskab, NTfK (Nordic Review of Criminal Science), 1992, p. 23, p. 32.
41. See Leigh (note 14), p. 22 seems to limit the screening of witnesses from the defendants view to terrorist cases. US law poses severe conditions for allowing the screening of child complainants, see Frase (note 4), p. 37, whereas English law is less restrictive, see Dickson (note 2), p. 25.
42. UfR 1984, 81 H; a complaint to the European Commission of Human Rights was dismissed as manifestly unfounded, DR 42 p. 287, application no. 11219/84.
43. Gammeltoft-Hansen: Strafferetspleje (Criminal Justice), 1991, I p. 92; W.E. von Eyben: Bevis (Proof), 1986, p. 115.
44. Gammeltoft-Hansen (note 43), 1989, II, p. 91 Bratholm, TfR 1959, p. 109. Aall (note 10) p. 299.
45. I agree with Frase (note 4), p. 61, as to the inherent weaknesses of the exclusionary rule. During the debate after my presentation I was attacked more strongly on this point, especially by the representative of Amnesty International, than on any other point. In an important case before the European Court of Human Rights, Schenk (1988), the use of illegally obtained evidence was not considered a violation of the Convention. In all systems the question is settled by judge-made law, in my view inevitably, as codification seems impossible, also in a highly codified system like the Danish.
46. Supreme Court Order 25th February, 1994 (414/1993). Western High Court, judgment 23rd January, 1995 (A 352/1994). A complaint to the European Commission of Human Rights after the Supreme Court's order, but before judgment, was dismissed as being premature. In the same direction a still later decision, UfR 1995, 753 HKK presented a similar problem.
47. A council for appointment is being considered. Whether it will have the far-reaching powers of the Polish National Council of Judiciary is very dubious, see Rzeplinski (note 2), p. 2,.
48. UfR 1994, 536 HKK (judgment quashed), but UfR 1995, 428 HKK (not quashed). Both cases were tried by part-time, not appointed judges employed in the Ministry of Justice, the former administering the prosecution service, the latter drafting new legislation, hence the divergent results.
49. Garde, Inhabilitet i sager med flere mistænkte - et skinproblem? (Bias in Cases Involving Several Defendants - a Pseudo-problem?). UfR 1991 B p. 300.
50. For the latest in a long series see Garde, Om nævninger med særligt henblik på den norske reform (On Juries with Special Reference to the Norwegian Reform). UfR 1994 B, p. 119. The jury is in Norway now only a court of appeal. In Norway the court (3 High Court judges) may by unanimity quash a verdict of not guilty, causing a re-trial.
51. The mode of appointment of lay judges shows major differences between Continental systems (by selection, e.g. for Germany see Samson (note 5), p. 17-18) and Anglo-Saxon systems (by lot, e.g. for England see Dickson (note 2), p. 27).
52. Waaben, Det kriminelle Forsæt (Criminal Intent), 1957, p. 69. Von Eyben (note 24), p. 119. Garde, (note 6), p. 360.
53. Von Eyben, Klageretten 50 år (The Court of Complaints 50 years). UfR 1989 B p. 249, p. 251 (and earlier reviews by the same). Danish and German rules are very similar, see Samson (note 5), p. 20. The possibility of review upon acquittal, although very small, has necessitated a Danish reservation to the International Covenant, art. 14, sect. 7.
54. The onus, though not an absolute burden of proof, is thus on the defendant, while e.g. Canadian law requires a new trial in case of a legal error, unless "no substantial wrong or miscarriage of justice occurred", see Roach (note 2), p. 7. In my view the Danish rule -- perhaps the clearest example of traditional Danish pragmatism -- is perfectly compatible with the ideal of fair trial because of the appeal system.
55. UfR 1985,923 H, commented on by Riis UfR 1986 B p. 44. Garde, (note 6) p. 354.
56. UfR 1995,355 ØL.
57. The very strong mitigation effect of a plea of guilty or plea-bargaining, characteristic of Anglo-Saxon systems, (see Frase (note 4), p. 51, with justified criticism p. 62), is thus unknown in Denmark. Also the German system of regarding the confession as the expression of reduced criminal energy, (see Samson (note 5), p. 23), is foreign to us, except for the very rare case of the offender giving himself up freely and voluntarily. Penal Code 84.
58. C. Egeberg Christensen (leading prosecutor in the Copenhagen police, Drugs section), Tilståelsens betydning for strafudmålingen (Confession and the Fixing of Sentence).
59. Also, while the limited appeal in jury cases is not in violation with the European Convention, 7th Protocol, art. 2, it has necessitated a Danish reservation to the International Covenant, art. 14 sect. 5. Garde (note 50), p. 127, whereas the corresponding Norwegian reservation has been annulled after the reform of the jury system. The limited appeal in the petty cases has, however, necessitated a reservation to the European Convention. In other respects the Danish system is more lenient to the appellant than the Norwegian system, where non-meritorious appeals may be summarily dismissed without a hearing.
60. Elsebeth Rasmussen in Meddelelser fra Landsforeningen af beskikkede advokater (Reports from the National Association of Beneficed Attorneys), no. 44/1992.
61. Thus, a very recent decision in the Supreme Court citing precedents as far back as 1940, refused compensation for 15 months detention in a drug case, where the accused had remained silent during the whole trial, even when a highly suggestive, taped telephone conversation was put to him. The second instance had stressed that even though the accused has the right of silence, he had thus caused the detention himself, see also A.2 above. UfR 1995,426 H.
62. 62Von Eyben: Klagerettens kompetence i ny belysning (The Competence of the Court of Complaints in a New Light). UfR 1992 B p. 289.
63. Gammeltoft-Hansen (note 43), p. 187.
64. W. Rentzmann (deputy director, The Department of Prisons): Etiske krav til straffeprocessuelle og strafferetlige indgreb (Ethical Demands on the Criminal Justice and Penal Systems). NTfK 1994, p. 211, p. 214.
65. The courts have no military members, unlike e.g. Canada, Roach (note 2), p. 4.
66. Garde, En afrikansk tragedie (An African Tragedy), Fuldmægtigen ("The Referendar") 1995, p. 149.
67. Of utmost importance are the two bulky works on human rights, Rehof & Trier: Menneskeret (Human Rights), 1990, and Lorenzen & al. (note 3). My own study, note 6, is still the most exhaustive dealing with the Unterpertinger problem. See also Eva Smith, Anvendelse af den europæiske Menneskeretskonvention ved danske domstole (The European Convention on Human Rights in Danish courts), UfR 1994 B p. 99.
68. Latest UfR 1996,234 H. Garde, Inhabilitet i sidste øjeblik. Bemærkninger i anledning af Højesterets dom UfR 1996,234 (Bias in the Nick of Time. Remarks on the Supreme Court judgment .....), UfR B p. 103.
69. UfR 1990,181 H
70. See note 21 above.
71. See note 17 above.