The Danish Supreme Court (Højesteret) and the Reform of the Judicial System

Højesteret was established in 1661 and its independence from national government was confirmed by Article 3 of the Danish Constitution of 1849 which lays down the principle of separation of powers. Contrary to several other judicial systems, Denmark does not have an administrative and/or a constitutional court. Therefore, it is the task of ordinary courts – with the Supreme Court at their top – to ensure that the executive acts within the boundaries of the law and that the statutes passed by the Parliament (Folketing) are consistent with the Constitution.

The Supreme Court is a court of last instance and hears cases in civil and criminal matters. It is actually composed of 19 judges who elect a president among themselves. The judges are appointed by the Minister of Justice on recommendation from the independent Judicial Appointments Council (Dommerudnævelsesrådet) and the Court’s members are at the present time recruited among members of the lower courts, the civil administration, the prosecution, attorneys and professors. Appointment of a selected candidate to a vacancy at the Supreme Court is conditional on him or her passing a test by rendering an opinion in four cases which is assessed by an appointed judge.

Cases before the Supreme Court are usually heard by five judges, each of them giving their account on how a case should be solved. The judges then jointly prepare a reasoned judgment – which as the case might be – states the opinion of the dissenting judge(s). Prior to the 2007 Court Reform, it usually heard cases on appeal from Denmark’s two high courts as a second instance court and exceptionally as a court of third instance. The Court Reform which gradually enters into force from this year has put its spell on this state of affairs. Indeed, the Court is now as a matter of principle an appeal court of third instance and only in exceptional cases does it hear cases as a second instance court.

The reform is the most important one since the Court Act of 1919. The present report will concentrate on this reform which affects the role and organization of the different jurisdictions. The aim of the reform is to ensure a better allocation of resources between the jurisdictions as well as a more efficient, quicker and modernized judicial system for the citizens.

Reorganization of the instance system: empowerment of the district courts

Prior to 2007, there were 82 district courts (byretter) which are now reduced to 24. This reduction does not aim at centralizing justice, but rather at strengthening the local courts by increasing the number of judges while entrusting them with new tasks. Indeed, all cases should in principle start before those courts, so that higher courts can concentrate on appeal cases. Nevertheless, district courts can decide to refer a case directly to the high court (landsretten) if the case touches upon matters of principle. When this happens, the judgment can then be appealed before the Supreme Court. In all other cases – those tried before the district courts – the effect of the reform is to relegate the Supreme Court of general appeal to a restricted role as a third instance court. The rationale of the reform is to better allocate the resources of the Supreme Court so that it can concentrate on the most important cases seen from a legal perspective. Such cases can only be referred to the Supreme Court after leave to appeal has been granted by the Appeals Permission Board (procesbillingsnævnet). Leave is granted where the case is one of principle or on other important grounds. The Supreme Court will thus review cases which raise fundamental issues as to the implementation and development of the law as well as those which raise essential issues for society as a whole.

Finally, district courts have also been entrusted with all criminal cases including jury trials. From 2008, jury trials will start before those courts subject to appeal before the land court which was hitherto a first instance court in such cases. Unlike the present situation, it will then be possible to have the issue of guilt reviewed on appeal.

Towards a quicker and efficient modernized judicial system

Rules relating to the preparation of cases and their hearing before the district courts have been simplified and modernized in order to ensure a quick and efficient handling of cases. A central element of the reform is that the district court shall quickly assess the legal and factual issues of the case at hand so that further steps can quickly be decided. As something new, certain cases can be tried by a panel of judges (three judges) and judges can specialize in specific types of cases. Moreover, experts can be called to act as judges where specific expertise is required in solving the case at hand. Pursuant to the principle of proximity of justice, in specific cases, proceedings can take place outside the courtrooms, for example at the town hall.

Furthermore, in order to ensure quicker and cheaper access to justice, a specific small-claims procedure will be established commencing January 2008 within the district courts. This procedure relies on the courts’ legal secretaries in preparing the cases to be heard, thereby reducing the necessity of assistance by a lawyer at this stage of the procedure. Likewise, the digital revolution has entered the courtrooms. Since 2007, it is now possible in special circumstances for a party and a witness to participate in court proceedings through telephone connection. Likewise the Ministry of Justice can lay down rules allowing the parties to participate in court proceedings through video connection and witnesses can be heard through this medium. Finally, from 2008, land registration will be digitalized and centralized under the responsibility of a special court (tinglyssretten).

Last but not least, the reform generalizes the practice of mediation which was undertaken in a few jurisdictions on an experimental basis. As a result of the success of this experiment, by 2008, all jurisdictions should be able to implement such services and enable the parties themselves to propose a solution to their conflict.