Strasbourg, 14 February 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: reply submitted by the delegation of Denmark
Part I: Preparation of the judicial decision
Is there a specific model to be followed in drafting judicial decisions?
Can each individual judge choose his own style of drafting his decision?
The Danish Administration of Justice Act does not lay down detailed rules for drawing up judicial decisions. It is however stated in the act that the courts must give reasons for their judicial decisions. The act also states a number of elements (cf. answer to Q 4) that the reasons must contain.
Further the Danish Court Administration has in cooperation with the courts drawn up and adopted rough drafts (standard models) for judgments in city court cases within various legal subjects - such as family law, certain offences within criminal law and insolvency - in order to make the decision making more effective
According to the Danish Constitution the judges are independent and only bound by law in fulfilling their judicial duties. As such they are not bound to follow the adopted standard models and can individually - but naturally in respect of the elements stated in the Danish Administration of Justice Act - choose their own style for drafting a judgment.
In their decision making the city court judges do however to a great extent use the standard models as drafts.
Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?
In a two or even more member panel, does the president or most senior judge have a second or casting vote?
A majority is equally binding and in case of a panel with an equal number of members the presiding judge will in civil cases have the casting vote.
In event of a tie in criminal cases the decision will be the one favorable to the defendant.
Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?
The courts deal with the points made by the parties. However if a synthetic approach is considered sufficient to state the reasons for the judgment, the court need not expressly deal with all the points made by the parties in their decision.
In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)
How in general terms is an Appeal/Supreme Court decision drafted? Is the appeal in your country by way of rehearing the case or not?
According to the Danish Administration of Justice Act a judicial decision must contain the following elements:
1) Claims and allegations/submissions put forward by the parties,
2) the factual background and the evidence (for example evidence given by witnesses) and
3) facts and applicable law taken into account by the court.
If the court is composed of more than one member and the members are not in agreement as to the conclusion, the judicial decision should also show the dissenting judgments and the names of the dissenting judges
When following this general outline stated in the Danish Administration of Justice Act a judgment must in its reasoning naturally match the complexity of the issue in question.
The appeal court can in civil cases do a complete review of the case in regard to the claims made by the parties before the appeal court. And the abovementioned regulation applies in principle to judicial decisions in both first instance courts and in appeal courts.
The tradition is however that the appeal court merely follows up on the decision in the trial court.
In criminal cases the extension of the courts review will depend on whether the appeal includes both the sentence and the question of guilt. If the appeal includes the question of proof of the defendant’s guilt the appeal court must according to the Danish Administration of Justice Act do a complete rehearing of the case. At the Supreme Court the question of proof of the defendants guilt may however not be tried by the court, and the panel of judges at the Supreme Court never includes lay judges nor jury.
Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal, administrative)?
Judgments must in general respect the requirements laid down in the Danish Administration of Justice Act irrespective of the subject matter.
Could you describe precisely how the decision is transmitted to the parties?
Is the judicial decision binding only on the specific litigants or does it affect the public in general?
Does your country acknowledge a difference in judicial decisions in personam and in rem?
In civil cases the court can decide to either deliver the judgment orally at a court session or to deliver it in writing only. Judgements in criminal cases must however be delivered at a court session, unless the judgment cannot be delivered on the same day as the case has been set down for judgment and the defendant is not imprisoned. In these cases the court can decide to deliver the judgment in writing.
A judgment is binding only to the specific litigants but may of course as case law/legal practice have an affect on future decisions regarding the same or similar legal issues. Judgments regarding family status are however binding erga omnes.
How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
Judgments - including certain declaratory judgments - are enforced by the enforcement court (the bailiff), and a claimant cannot carry out contempt proceedings against a litigant who does not comply with a judicial decision.
A declaratory judgment which cannot be enforced by the enforcement court must instead be followed up by a new lawsuit in which the claimant obtains a judgment that provides for enforcement.
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?
Court sessions are usually open to the public but the court can decide that a session should take place behind closed doors.
Court sessions where the court delivers a judgment are however always open to the public.
To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)?
The Danish Act on Protection of Personal Data applies also to the judiciary, thus any publication of judgments or of names is done in accordance therewith.
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
Chapter 3a in the Danish Administration of Justice Act states a right of access for all persons to judicial documents, including judicial decisions.
The act also states a number of exceptions to the right of access. Access to documents may thus be denied in full or in part if for example the documents contain personal information on purely private matters and the interest in obtaining this information is found to be overridden by essential considerations to the said persons.
Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?
Summaries of selected judicial decisions in both first instance courts, in appeal courts and in the Supreme Court are published on the internet in due respect of the regulation on protection of personal data.
Part II: Evaluation of the judicial decision
Is a system of evaluation of quality of justice in force in your country?
An actual system of evaluation of quality of justice is not yet in force in Denmark. The Danish Courts do however find quality projects to be of great interest, and the Danish Court Administration is therefore at the moment looking into the matter and setting up a project on quality assurance within the judiciary.
Quality in justice within the Danish judiciary is also to some extent ensured by existing laws and practices.
According to the Danish Act on the Court Administration the Board of the Danish Court Administration must take the necessary steps to ensure a proper and reasonable operation of the courts. In pursuance of this obligation the Board of the Danish Court Administration points out 4 focus areas every year to be given particular attention by the courts.
The Danish Court Administration has also drawn up a number of general objectives – including tasks, visions and values - for the Danish Courts as such which includes an objective to always give decisions of high legal quality and an objective to always show due respect for the individual.
The case flow management at the Danish Courts is in general shown great attention and the Danish Court Administration therefore view the case flow closely and collects statistic information from the courts for yearly statistic reports.
According to the Danish Administration of Justice Act judgments must be given as soon as possible after the proceeding has ended. In city court cases where the court is composed of merely one judge and in high court appeal cases the court must give its decision within 4 weeks from the day where the case was set down for judgment.
Judgments in other city court and high court cases must be delivered within 2 months from the day when the case was set down for judgment.
In practice judicial decisions are however given long before the expiration of these time limits.
It is for example the tradition at the Supreme Court to deliver a judgment the same weekday at noon one week after the proceeding has ended.
As for certain assault cases and cases of rape the Ministry of Justice has set up strict objectives for the processing time which means that the city courts must review these cases and give a decision within 37 days upon receiving the case, and that the Court Administration must give yearly reports to the Ministry of Justice on the processing time.
Regarding the service at the courts and the behavior of the judges the Danish Court Administration has conducted a survey within the Danish Courts to assess the citizens experience at the courts - thus how the citizens found the service they where met with to be.
It also follows from the Danish Administration of Justice Act that judges must act in due respect of the parties and their judicial duties when performing their office. If a judge shows neglect, misconduct and/or careless behavior in fulfilling his or her judicial duties the judge may be given a warning by the president of the court in question. Any complaints can thus be filed to the president.
Anyone who feels infringed or violated by a misconduct of a judge may also file a complaint to the Special Court of Indictment.
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
See Q 12.
If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter:
· legal basis:
· identification of the agencies that are responsible for the process:
· parameters that are evaluated:
· methods by which each parameter is evaluated:
See Q 12.
What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?
See Q 12.
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
See Q 12.
Is a system of evaluation of quality of each of the following in force in your State:
· professional performance of police? yes □ no □
· professional performance of public prosecution services? yes □ no □
· professional performance of lawyers? yes □ no □
· enforcement of judgements? yes □ no □
· efficiency of ministry of justice services in general? yes □ no □
· quality of legislation? yes □ no □
See Q 12.