English has only one word for an appeal, Danish law has 2 distinct types, namely “anke” and “kære”. Traditionally they are translated as “appeal” and “interlocutory appeal”, but a “kære” does not have to be an interlocutory step. I have therefore chosen to use the word “appeal” for “anke”, as that is the major appeals procedure. For the second type, I use the term “query”, simply because it sounds so similar and gives a notion of complaint. Collectively I shall speak of “review by a higher court”.
Danish lawyers will commonly use the term “remedy”, not knowing that in English law, this is a concept of substantive rather than procedural law. The mistake probably arises because we all use the same faulty dictionary.
Having said that Danish law operates with 2 distinct types of reviews, one has to admit that the distinction at times is blurred. Typically, appeals lie against judgments and are heard orally by the court above and – if possible – sitting with lay judges, whereas individual orders and decisions are queried in writing to a panel of judges only. However, this may not always be the case.
The general rule is that any ruling of a court may be reviewed by one more court (§§ 940, 962, 967, & 968). The principle does, however, have exceptions.
Firstly, some cases originally heard by the Town Court may be heard in the third instance by the Supreme Court, if the Minister of Justice gives leave (§ 966). Cases concerning dissolution of associations are exempted from the need for leave. I do, however, doubt, whether that rule has ever been used.
Secondly, there lies no right of appeal against convictions in police prosecutions, when the sentence falls below a specified minimum (generally fines less than app. £ 85), unless the Minister gives leave and even his powers to give leave are limited (§ 962).
There is only one way of appeal – this means that unlike in England a case cannot go from a criminal court to judicial review in a civil court, nor is there any possibility of any leapfrogging (except in obscure circumstances).
The time limit for lodging the grounds for review is a fortnight from the delivery of judgment (or if the offender was not present – from when the judgment was served on him). Later applications may be admitted, if the appellant was misinformed or hindered from applying and acted within a fortnight after he became aware of the possibility of a review (§§ 948 & 949).
If one side lodges fortnight to lodge prosecution does so an appeal, then the other side has a fortnight to lodge a counterappeal and at least the prosecution does so in nearly all cases in the Supreme Court.
1. Appeals The principal aim of an appeal is a review of the judgment of the court below, but any other ruling (order or decision) may be reviewed as part of the appeal, unless it has already be determined by way of a query. An appeal normally carries a stay of execution.
As opposed to the traditional position of English law, where only the defendant could appeal from trials on indictment, the Danish system was constructed in order to give the parties equal rights and consequently both sides may appeal and this extends to all of the set grounds of appeal. It follows that there has been no need for the changes that have occurred in English law, namely the introduction of the Attorney General’s right to refer a question of law to the Court of Appeal in 1972, and prosecution appeals in case of unduly lenient sentencing coming into force in 1989.
The prosecution may appeal in favour of either side, whereas an accused may only appeal in favour of himself. This is construed to give him a right of appeal when he has been acquitted, but received sanctions such as a hospital order or the like. And an appeal has even been admitted, when the offender preferred a short harsh sentence to a conditional discharge *46.
Normally, the time-limit for enforcement of the judgment is the same as for an appeal, but a convict who renounces his right to appeal may start serving the sentence immediately. It is therefore common to admit an appeal lodged within the ordinary time-limit, although the right of appeal has been renounced. It actually does not make any difference if he alternatively keeps his right of appeal, because he may then be remanded in custody, and that in turn is off-set against the sentence.
In so far as it lies within the possible grounds of appeal, the result of an appeal may be either dismissal, confirmation, a change of verdict or sentence (a new substantive judgment), or remission to the court below.
The possible grounds for appeal are different when appealing to the High court and to the supreme court, and this in turn means that the procedure is different.
Appeals to the High Court. Unless there is some indication to the contrary, appeals to the High court against the substance (i.e. verdict or sentence) of a Town court judgment will result in a complete rehearing of the case. The substantive appeal may, however, be expressly limited to either wrongful application of criminal law, or the sentence being out of proportion to the seriousness of the offence, in which cases the rehearing does not have to include theevidence (§ 963)’
As an alternative to a substantive appeal, one may appeal against the failure to apply due process of law, in which case the same proviso applies, as when appealing to the Supreme Court.
The court will consist of 3 judges and 3 lay judges, if lay judges participated in the Town Court or if the case was forwarded summarily upon confession (see paragraph 8.3). Otherwise, the court consists of 3 judges (§ 692, stk. 2, cf. § 6, stk. 1 & 2).
The procedural rules are the same as when the High Court sits with a jury with the necessary changes. The court may, if necessary, hear additional evidence. It may also admit records from the court below as evidence, if none of the parties has requested that witnesses testify again (§§ 965a & 965c, stk. 4).
An appeal against both the procedure in the court below and its judging of the evidence will almost invariably result in a new substantive judgment, instead of remission.
When the appeal is limited to a point of law or the sentencing, then the court has powers to try other possible grounds of appeal except the evaluation of the evidence, and jt may extend the benefit of a succesful appeal to others (§ 965, stk. 1).
Appeals to the Supreme Court subject of an appeal to the supreme Court from a jury is limited to the court below failing to apply due process of law, the bench ruling wrongly on a point of law or fact, giving the the jury an incorrect direction on the law, or manifestly exceeding the appropriate sentence (§§ 943 & 945).
The main reason for these limitations are that it has been felt that it would be wrong if the Supreme Court could set aside the decision of a jury as far as the evidence is concerned, particularly as it has not even heard the evidence. It has also been felt that it would be contradictory to this principle if the Supreme Court had greater powers, when hearing smaller cases as a court of third instance, and consequently the possibilities of appeals are nearly the same in those cases.
The Supreme court may dismiss the case at a preparatory stage, when it is manifestly clear that the appeal cannot succeed on the grounds stated (§ 953).
The hearing takes place before a panel of at least 5 judges (§ 2a, stk. 2) and is almost invariably opened by the prosecution, though there actually is statutory provision for the first appellants counsel to do so. Unlike in the Court of Appeal in England, where the prosecution regularly abstains from pleading at appeals against sentence, both sides will invariably be represented by counsel. The rules of procedure are decided by Supreme Court itself. The accused has a right to be present, but no duty to (§§ 956 – 957).
The court has a wide power to consider grounds of appeal other than those submitted to it, and to extend the benefits of a succesful appeal to others convicted under the judgment in question who have not themselves lodged an appeal (§ 959).
The possible outcome of the appeal does, naturally, differ with the grounds on which the case was appealed and may also depend on whether the court is sitting as second or third instance, and on whether the court below convicted or acquitted. Firstly, a succesful appeal based on failure to apply due process of law is dependent on the proviso that the appeal shall not be allowed “unless it is considered reasonable that observance of the rule of procedure in question might have resulted in another outcome of the case” (§ 946). The proviso does not apply to any other ground of appeal. If allowed, the appeal must result in remission and this applies to appeals from either side.
Secondly, an appeal against sentence can only result in either confirmation or a new sentence. It is a sign of the wisdom of the judges that what to ordinary lawyers appears to be minor adjustments in sentences to them seem ‘manifestly’ clear.
Where the appeal is from a jury and the High Court has decided that the alleged facts do not constitute a crime and recorded an acquittal that may be challenged and the Supreme Court may give a conviction. Similarly they may acquit, if they do not think the alleged facts amount to a crime.
When the judges in the High Court simply ordered a retrial due to insufficient evidence, it is still possible to challenge the proceedings leading to the jury verdict in the usual manner. If such an appeal was ever to be launched, which I doubt, it would have to be heard before the retrial.
When a jury received a wrongful direction in law, or when the questions put to it were based on a misunderstanding of the law and the jury acquitted, the appeal must necessarily either fail or result in remission; and that rather than an acquittal does also seem to be expected in cases where the jury convicted in such circumstances. It is submitted that in second instance cases the Supreme Court has no powers to substitute another offence than the one the jury has convicted of *47. The position is slightly different when the Supreme Court is sitting as court of third instance in that the court may substitute another offence when the facts are sufficiently clear.
And finally any question of fact left to the judges to decide may be reconsidered by the Supreme court; this includes obscure matters of time-barring and the defence of insanity when the jury failed to reach a decision.
It follows from the above that the powers of the Supreme Court sitting in second instance in many ways resemble those of a court of cassation, the practically important difference being the power to vary sentences. It is equally clear that the jurisdiction builds on the false dichotomy between law and fact and the court solves this problem by showing great reluctance towards considering questions of mixed law and fact. While nearly all the possible grounds are listed above it should be remembered that only a few are regularly used, for example, it has actually been impossible for me to find a prosecution appeal against an acquittal from a jury.
2. Queries. right of query lies against all orders and decisions unless otherwise provided by statute. Parts of judgments may be queried in two very specific instances, namely when counsel has been fined for negligence during the trial, and when he wishes to challenge a ruling on costs (§968).
A query is dismissed when the party no longer has an interest in it, e.g. if judgment is passed before the query has been heard, and the querying party does not wish to challenge the outcome of the case by way of appeal. This is an application of the familiar principle that courts only consider actual disputes.
The general rule that all decisions and orders may be queried has a number of exceptions. The main exception being that orders and decisions given during the trial and immediately before cannot be queried. But even this rule has important sub-exceptions namely, when the ruling provides for the case to be adjourned (including dismissals), is concerned with the excercise of police powers e.g. remanding in custody, has legal consequences for a third party e.g. a witness being compelled to testify, or when there is other statutory provision to the contrary (§ 968, stk 2).
Special statutory provisions allowing for orders given during the main hearing to be queried are numerous and include such matters as appointment of a defence lawyer, closing of the doors, disqualification of judges or jurors and the like (§ 732, stk. 3; § 30, stk. 1 & § 64).
Apart from the parties to the case, who may both query, anyone for whom an order or decision has any legal consequences may query it (§ 968, stk.l). Thus a witness may challenge a ruling compelling him to attend, but unlike the recently introduced rules in Britain a journalist cannot challenge an order closing the doors.
A query is raised by either handing in a written plea or orally to the record of the court. The other party is then informed about the query. Unless the lower court decides to change its ruling (and provided it is within its the powers to do so), the pleading and the opinion of the lower court are sent to the higher court. other parties may hand their pleadings to the higher court, but the higher court does not have to wait for any pleadings (§§ 970 -971).
The higher court may order an oral hearing of the query, but this is rather rare. The query is considered by 3 judges always sitting without lay judges (notwithstanding the apparently contrary wording of § 692, stk. 2), and their ruling is normally delivered in the form of an order (§§ 972 -973).
As opposed to an appeal a query does not give a stay of execution unless specifically granted by one of the courts and consequently the case may be finished before the query has been decided, in which case the query will be dismissed.