One of the major concerns of any legal system is the risk of miscarriages of justice, whether it be in the shape of unsafe convictions or unjustified acquittals and the possibility of double jeopardy. As Danish law considers all these questions to relate to the finality of judgments they have been grouped together under the heading resumption.
As with appeals an important difference from English law is that the system may operate both in favour and to the detriment of the accused, because – in the words of the travaux preparatoires – “there is no reason why a man who has committed a hideous crime and who is only acquitted for want of evidence or on the basis of false evidence, but whose guilt later by chance becomes clear should have some kind of letter of safe-conduct to walk around freely and unassailable as a living and demoralizing testimony to the imperfections of the administration of justice” *48. In fact, such cases very seldomly occur *49.
As in other cases of procedure as much attention should be given to who may order it as to when they may do so. Unfortunately, the rules on competence are somewhat unclear, probably because of a change in the statute in 1939. straightforward are cases which originally were heard by a jury or ended on appeal, because by statute they are left to a particular tribunal, The Special court of complaint. Equally easy are cases where the grounds for resumption could not be raised on appeal. But it is uncertain whether the court of complaint may order resumption against Town court judgments which can still be challenged on appeal (and remember that the statute does provide for late appeals §§ 963, stk 3 cf. 949, stk. 2) *50. Outside the court’s jurisdiction is the resumption of private prosecutions *51. A further uncertainty arises, when the prosecution later wants to bring further charges on facts that already have been tried. In one case the High court assumed that it could give permission, but in another case the prosecution requested permission from the Court of Complaint. It is respectfully submitted that the High Court decision is wrong, as in the absence of express statutory provision I see no reason that different rules should apply to the prosecution *52.
An application to the Court of complaint does not constitute an alternative to the ordinary appeals procedure, because it can only be considered after any possible appeal has been heard (§ 978).
Apart from a requirement that the other side should be allowed to comment on the application there are no statutory requirements to the procedure before the court. New evidence may be gathered either through a police investigation or in a session of the court (§§ 980-981). Most cases are considered on written submissions only.
Applications in favour of a man who originally was convicted may be granted on three grounds (§977). Firstly, whenever new information has come to light and it seems reasonable to believe this might have lead to an acquittal or a considerably lighter sentence.
Secondly when false testimonies were given by witnesses or experts or false or falsified documents were offered in evidence or a crime was committed by someone who by virtue of public office or service participated in the processing of the case with intent to affect the outcome of the case and there are good reasons to believe that it did affect the outcome of the case.
Thirdly, when there are other circumstances which make it highly probable that the evidence was wrongly adjudicated upon.
An application may be granted although the sentence has already been served and in favour of a convict even after his death. Applications under the last rule are, however, time-barred two years after his release or after 5 years from the judgment, whichever is the later (§ 979, stk. 1)
When the original case ended in an acquittal the application may be allowed (§ 976) when either according to a confession later made by the accused or evidence, which has com to light later it must be assumed that he did commit the crime, or when the course of justice was perverted in the way mentioned above.
Resumption may under the same circumstances be allowed when somebody who has already been convicted is accused of substantially worse crimes than originally convicted of. In all cases the prosecution has to respect the time limits for laying charges in the Criminal Law Act.
In case of resumption of an acquittal the prosecution must refute any blame for not producing the evidence at the original trial, whereas such a rule does not apply to convictions. The Court of Complaint cannot order resumption in case of a failure to apply due process of law and Danish law thus lacks a safety-valve when in all the circumstances of the case the conviction is unsafe or unsatisfactory.
If the Court of Complaint allows the application it willissue an order to the effect that a retrial of the case should take place or in case the applicant is deceased an acquittal.
The retrial always takes place at that High Court which dealt with it before (§ 983). If the case originally was heard in a High Court, then appeal to the Supreme Court lies as of right, matters originally under Town Court jurisdiction can only be appealed from the retrial with leave from the Minister of Justice. Otherwise the usual rules apply to the retrial.
It is not uncommon for a retrial to result in a new conviction though it becomes rarer the more serious the case. The principle of non reformatio in pejus applies, if the application for a retrial was granted in favour of a convict.
Turning to cases that never resulted in a trial it is natural that the police should be allowed to reopen any investigation that was abandoned for lack of evidence and without anyone being charged.
But once charges have been laid consideration must be taken of the accused’s position and desire to get the case finished. Thus under § 975 resumption of a terminated prosecution may only take place under the same conditions as for an acquittal. Traditionally this is said to be the case only when the prosecution was abandoned for want of evidence and not if merely waived discretionarily *53. I do not see any compelling reason for this, as it creates a gap in the law which must then be filled with analogous rules. Furthermore, the framers probably saw the problem and considered it covered by their rules *54. Who has competence to take the decision is probably more doubtful, but nobody has considered that – at least not since the change in the rules in 1939.
Further but less important rules on the resumption of cases apply, when a person has been convicted in absentia.