Danish Criminal Procedure – Chapter 5: The Judiciary

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5 The Judiciary

1. Judges.The necessary qualifications for holding a judicial office are laid down by §§ 42 and 43 of the Administration of Justice Act. All judges must be of full age, hold an LLM, and be financially sound and in the case of judges in the senior courts, they must previously have held certain offices for a specified number of years. In the case of the supreme court, naturally the positions have to be more senior.

In practice, judges are appointed from the ranks of the civil servants of the Ministry of Justice, and consequently anyone aspiring to the bench will take up employment with the Ministry immediately after graduating. The employees of the Ministry are divided into two streams, a fast and a slow, according to the grade of their degree *6.

In the fast stream, it takes approximately 10 years of employment in the Ministry before being appointed to a senior position. During that time, the candidate must spend a period of two years as a registrar or clerk in a provincial Town Court, and he must have a morning job in either the prosecution service, or as a bailiff, or teaching law at the university.

Upon completion, he may receive either a senior position such as head of department in the ministry, or be appointed to a judgeship in the Town Court in Copenhagen. After a numbe r of years he can expect promotion to one of the High Courts.

In the second category, prospects are less certain, but generally it takes twice as long to obtain a senior post. During those years, the candidate will work in the police as a prosecutor, as a clerk in a Town Court or in one of the directorates of the ministry (e.g. of family law or aliens, or the prison service or the charity register). He will also spend time as a temporary judge in the High Court and erhaps in the Ministry itself. If successful, he may become Town Court judge outside Copenhagen or alternatively, receive a position as chief constable, or chief crown prosecutor. A small number may get a judgeship in the Western High Court.

Supreme Court judges are usually promoted from the High Court. On appointment they tend to be in their early fifties, securing a reasonable length of time in the Supreme Court. As opposed to the English system, a judge will not sit in a lower court than he is nominally appointed for. Temporary judgeships are usual in the High Courts, but not allowed in the Supreme Court.

The independence of the judiciary is secured by tenure. The mandatory retirement age is 70, but a judge may be dismissed discretionarily at the age of 65, provided he keeps the full salary until the retirement age (Constitution § 64).

As in Britain, the salary is substantially lower than that obtained by people of equal skill in the legal profession, but the job carries a substantial pension upon retirement and considerable prestige.

One very unusual feature of this system is that only very rarely does a judge have any experience of defending a case, whereas most judges have experience as a prosecutor, and in the case of Supreme and High Court judges almost invariably a great deal of it. In fact none of the for Danish judges of the Supreme Court have any experience as counsel for the defence *7.

2. Lay members of the courts. There are two groups of lay participants in the Danish judicial process: lay judges and jurors *8.

Lay judges take part in the hearing of a number of cases originally heard by the Town Courts. The term “lay judge” is used rather than the common translation “lay assessors”, because they are judges of both law and facts. Actually, when sitting on the bench, they have the same rights and duties as the professional judge (§ 91), but it must be remembered that a number of questions are heard without lay assessors, notably questions of compensation for the victim.

Jurors on the other hand, are used in much the same way as in Britain. They independently decide whether the accused is guilty of the crime for which he is charged (§ 885) and whether he is excused on grounds of insanity, self defence etc. But there is one major difference from English law in that the jury participates in the sentencing.

Whereas English jurors are selected at random from the electoral roll, the Danish system incorporates some basic elements of selection on the basis of merit. The system seems to be generally accepted, and few argue for it to be replaced with random selection.

Initially, both groups are drawn from the same “basic 1ist” of selected citizens. The basic list is compiled every 4 years by a select committee of the local municipal council (§ 72 & 73).

At the time of compilation, those on the list must be aged between 18 and 66, reputable, and on the electoral roll. They must not be mentally or physically deficient, nor may they suffer from an insufficient command of the Danish language (§ 69).

Like in England people belonging to a number of professions are excluded from service, notably those concerned with the administration of justice and priests of recognized religions (in reality only christian churches). A number of other people are entitled to be excused (§§ 69-71).

These rules are, however, rarely used, as the majority of the chosen people are either approached by their local councillor before they are selected or, indeed, ask to be selected. More often than not, councillors simply propose those on the local party roll and, generally speaking, once chosen, you remain on the list for the rest of your life *9.

The basic lists are returned to the President of the High Court, who then by drawing lots compiles the lists of lay judges in the Town Courts, and a combined list of jurors and lay judges for the High Court. A juror or lay judge should serve approximately 4 times a year and the number of people on each list should be fixed accordingly (§ 78).

Jurors are selected to hear one particular case, whereas lay judges hear all the cases starting on a particular day. The counsel are informed of the names of jurors, but not of lay judges, 2 weeks in advance of the trial (§ 80).

Like judges, lay members of the court cannot serve if they have one of a number of specified connections to the case or, when for any other reason, their impartiality cannot be guaranteed (see §§ 60 & 61). All lay judges or jurors should be asked by the chairman of the court at the beginning of a trial whether it is right for them to serve on the particular case (§ 66, stk. 2). Any party to the case or any of the judges may raise a challenge for cause to the polls (§ 62). Challenges to the array are unheard of.

In jury cases, the defence and the prosecution have a further right to two peremptory challenges (§ 81). In cases that are deemed political, the permitted number of peremptory challenges is raised to four. Such a challenge must, however, be raised within 4 days from the receipt of the jury-list for the case. The right is seldomly excercised by either party, and the abuse that led to the recent changes in English law is totally unknown.

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