Danish Criminal Procedure – Chapter 3: The Area of Criminal Procedure

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3 The Area of Criminal Procedure

Criminal procedure must be used in cases concerned with criminal law i.e. all punishable offences (§683), unless there are statutory provisions to the opposite effect. Initially, one might think that criminal procedure was used solely in criminal cases, but this is not so, as a number of other related matters are also dealt with by the criminal courts (cf. § 684). The selection is basically pragmatic and meant to save litigation in the civil courts and the civil questions considered during trials are those that commonly arise out of criminal actions *3.

Probably, the most important are the private claims for damages from the victim of the offence, which may be considered during the trial (cf. §§ 991-996a)

Furthermore, criminal procedure is used in cases concerning forfeiture of property or profits under any act and any case under the Criminal Law Act that may have some kind of custodial consequence. On the other hand, judicial review of discretionary detention under the Social Security Act (Bistandsloven), Insanity Act (Sindssygeloven), public health acts etc. are dealt with by the civil courts (cf. chapter 43a §§ 468 – 475).

Also included are cases concerning a number of sanctions apart from punishment such as exclusion from a specified trade, disqualification of inheritance, loss of rank and title etc.

Law-suits against private individuals by public authorities enforcing their statutory powers, i.e. breaches of planning laws etc. are also brought under the rules of criminal procedure, even though there is no question of punishment. Judicial review of administrative decisions is, albeit, a matter for the civil courts. Equally collection of taxes and fees to public agencies is a matter left to civil courts.

When claims for damages for unjustified criminal proceedings are forwarded, criminal procedure applies.

And finally, actions concerning the dissolution of associations, and the importation of foreign books are dealt with by the criminal courts.

Rather more unexpected than the inclusion of civil matters under criminal jurisdiction is it that private prosecutions are forwarded according to the rules of civil procedure.

As a large number of procedural rules distinguishes between cases according to the possible sentence, it may be useful to note those that are used to distinguish between the different categories of cases in Danish law. The ordinary punishments are fine, simple detention (hæfte) and imprisonment. Simple detention is a slightly milder (and more “honourable”) form of imprisonment not exceeding six months, though not necessarily srrved in an open prison *4.

Two further types of custodial sentence are known and they both have procedural significance. Firstly, confinement of insane or mentally retarded offenders for either a fixed term or discretionarily, which roughly equals “detention at Her Majestys pleasure” in English law. Secondly, custody of dangerous criminals, which is always for an indeterminate period of time. This latter type is used against persons who repeatedly commit very serious crimes, mostly arson, rape and violence, and although the offender evidently suffers from a severe personality disorder, he may not necessarily be insane.

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