2 The Statutes
The Administration of Justice Act (AJA) contains most of the rules relating to court procedure in Denmark. It was originally passed in 1916 and entered into force on October 1st 1919. Since then it has been amended numerous times, and this survey refers to the act as amended by Act no. 332 of May 24th 1989.
Other rules on court procedure are to be found in the Bankruptcy Act, the Administration of Estates Act and the Act on Court Registrations (for land, chattel, marriage settlements etc.). All of these statutes are, however, only concerned with civil procedure. A number of other statutes contain rules on extradition and prosecutions abroad. Courts martial exist but are insignificant, and are governed by their own code of procedure.
The Administration of Justice Act covers matters such as:
– The qualifications and appointment of judges.
– The selection of lay members of the court.
– The legal profession and its domestic tribunal.
– The rules of civil and criminal procedure.
– The enforcement of judgments and court orders.
– Most police and prosecution powers.
– Rules on damages for unjustified prosecution.
Even though judicial matters are exempt from home rule, the particular geographical conditions of the Faroes and Greenland have necessitated special rules. Consequently, the Administration of Justice Act does not apply to cases before the courts of original jurisdiction in these areas. It does, however, apply when Danish courts are exercising appellate jurisdiction.
The Danish Constitution of 1849, which abolished the absolute monarchy, contained a number of promissory clauses for future legislation. One of these demanded the introduction of public and oral proceedings, jury-trial for serious felonies and the separation of the judiciary and the executive.
The promissory clauses must be seen as a reaction against an unsatisfactory inqusitorial system where evidence was gathered by the local judges in closed sessions and adjudicated upon by a slow, written procedure *1.
During the 1850’s, a number of individual parliamentarians and lawyers drew up proposals for statutes. Amongst these, the anglophile Hother Hage should be noted for his advancement of juries *2.
None of the bills, however, were enacted, and neither was the main body of the draft proposals of 3 different Royal Commissions set up in 1857, 1868 and 1892. This was mainly due to a prolonged struggle for power between the Liberal majority of the Lower house of the parliament (the Folketing) and the Conservative government which held a majority in the Upper house (the Landsting). Only after the Liberals had finally gained power in 1901 could agreement be reached for a major reorganisation of judicial institutions.
The resulting act placed Denmark in the family of accusatorial systems of adjective law, though with some visible influences from continental legal systems e.g. acceptance of majority verdicts from juries, an idea originally introduced in France. The continental influences are probably so important that it it is fair to regard the Administration of Justice Act as a second generation on the continent, rather than as an adopted child.
Naturally, a large number of the clauses contained in the final act were identical to those of the previous proposals. And as Danish law (contrary to British) allows reference to any preliminary draft or report in order to establish the true meaning of a statute, the drafts are consequently often referred to in disputes on procedural matters.
A large number of amendments have been passed changing the original statute beyond recognition. Most notable are the amendments of 1936 introducing lay judges in trials of lesser felonies and abolishing the use of depositions from committal proceedings as evidence during those trials. In 1939 a special court of revision for criminal cases was introduced. In 1978 the chapters on police powers during investigation were rewritten, committal proceedings abolished, and strict liability for unjustified criminal proceedings instituted. In recent years, a further number of changes have been made, notably on the use of police agents provocateurs, protection of witnesses and intimate searches and samples.
Most amendments are prepared by Royal Commissions, now by the permanent Committee on Criminal Procedure (strafferetsplejeudvalget) set up in 1968 or the permanent Commission on the Administration of Justice (Retsplejeradet) established in 1961.
As the Act now stands, it is divided into 4 books, subdivided into parts, chapters and sections. Chapters and sections are numbered consecutively and, if an amendment does not fit, the preceding number will be used with a letter attached to it. Sections are referred to by the sign and subsections by the abbreviation “stk.”
Danish statutes are regularly reprinted in a consolidated form known as statute promulgations. These promulgations are for information only and not legally binding, as opposed to British consolidated acts.
The act provides for secondary legislation to be made by the Minister of Justice in a number of cases, or in the case of rules on waivers of prosecution, by the Director of Public Prosecutions. A set of rules such as the English Rules of the Supreme Court does not exist, and the superior courts would not be able to issue a practice direction.
The complete administration of justice act has never been translated into English, I have indeed been unable to find any part of it in English.