REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (at least 4 pages). 3. The report must be filled in English or French. If not possible, the report could be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary (1-2 pages) shall contain a synthesis of the most important information of the report. 6. If you agree for your report and/or summary to be published on the EJTN website, please tick the relevant box below. Identification of the participant Name: First name: Nationality: ITALIAN Functions: JUDGE Length of service: 4 YEARS Identification of the exchange Hosting jurisdiction/institution: DISTRICT COURT OF FREDERIKSBERG City: COPENHAGEN Country: DENMARK Dates of the exchange: MARCH 2010 Type of exchange: one to one exchange X group exchange X general exchange specialized exchange (please specify : ) Authorization of publication I undersigned hereby authorize the publication of this report and/or summary on the website of the. In On Signature / (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 REPORT 1) PROGRAMME OF THE EXCHANGE The exchange programme in Denmark took place from March 8 th till March 18 th. On Monday March 8 th we arrived at Fredericksberg District Court (Retten pa Frederiksberg) where we were welcomed by the court s President T.G, the assessor U.O and the deputy judge B.G, and the principal M.R.T from the Danish Court Administration. We got explanations about the following days programme and an introduction to the Danish Court system. On Tuesday March 9 th we went to Glostrup District Court (Retten i Glostrup) where deputy judge B. G gave us an introduction to the way criminal cases are heard in Denmark and then we assisted at a jury trial. On Wednesday March 10 th the jury trial continued at Glostrup District Court and we assisted all the day long at the jury trial until the verdict was brought in and we had the opportunity to discuss the case with the prosecutor and with the lawyer s defendant who described us the criminal case. On Thursday March 11 th we went to the Danish Court Administration where M.B.R.T told us about the Court system, the career system, the judges recruitment, the Judge School, the Judicial Appointments Council and so on. In the afternoon we had a tour of the building of the Supreme Court and deputy judge M.N told us about the work of the Supreme Court. On Friday March 12 th we went to the Police Station Borups Alle where we met the leading prosecutor Michael Jorgensen who gave us an introduction to the work of the Danish prosecuting service and the Danish Police. On Monday March 15 th we went to Copenhagen Business School where we met Professor, PhD, LLM P.A.N who gave us an introduction to the international commercial arbitration and talked us about the national and international regulation and also about the Danish experience. At we were invited to visit the law firm Kammeradvokaten which is a private solicitors firm who represents the Danish State in almost all civil lawsuits. On Tuesday March 16 th we were received in judge J-M.S room where we also met deputy judge M. D. They explained us how civil cases are dealt with in Denmark and we had the opportunity to witness at a conference on the phone about two cases of the day with M.D as an interpreter. On Wednesday March 17 th we had a tour in Copenhagen Jail and we asked explanation about the Jail s rules to a prisoner s officer who brought us to visit also the prison s wing where the Hell s Angels are jailed.

3 On Thursday March 18 th we visited the law firm Gorrissen, Federspiel and Kierkegaard where we met solicitors N.W and J.S who told us that theirs is a full service corporate law firm and is considered the most international law firm in Denmark. They also gave us an introduction to the Danish model and explained us the working system in Denmark. 2. THE HOSTING INSTITUTION Our hosting institution has been the District Court of Frederiksberg which has a President, T.G, 12 other judges, who are both civil and criminal judges, and 15 deputy judges and approximately 80 civil servants. It is a Town Court District including Frederiksberg and parts of Copenhagen city (approximately persons). The Danish Court System until 31 st December 2006 was organized in a three tier system: Town Courts, Courts of Appeal and a Supreme Court. Denmark was divided into 82 Town Court Districts, most of them held by only one or two judges dealing with civil and criminal matters. In the bigger cities several judges worked in one district, often headed by a President. The second tier consisted of two Courts of Appeal, one in Copenhagen (Ostre Landsret) and one in Viborg, Jutland (Vestre Landsret) with 64 and 39 judges, respectively. The Supreme Court (Hojesteret) which is composed by a President and 17 other judges, is not a Court of Cassation, but an appellate Court for judgements rendered by two regional Courts of Appeal and by the Maritime and Commercial Court (So-og Handelsretten) in Copenhagen. The vast majority of cases, civil as well as criminal, were heard by the Town Court on first instance where were also tried all cases in which the defendant pleaded guilty and criminal cases with a max penalty of 4 years imprisonment. Some cases were tried by the Court of Appeal on first instance, thus acting as a High Court, in particular, civil cases involving claims above DKK 1,000,000 at the request of one of the parties and claims against the central State administrative authorities. Only a very small part of the criminal cases will start at the Court of Appeal, namely the cases requiring trial by jury. In the Greater Copenhagen area civil cases requiring maritime or commercial knowledge are heard by the Maritime and Commercial Court. After the reform on the structure of the judicial system in 31 st December 2006, the Danish Court System consists of 24 District Courts with 241 appointed judges, two Courts of Appeal (HC Western Division and HC Eastern Division) with 101 appointed judges and the Supreme Court with 19 appointed judges. The competence of City Courts concerns all first instance civil lawsuits and all first instance criminal cases; the competence of Courts of Appeal concerns all the cases appealed from the District Courts and also principal or very important cases; the competence of Supreme Court concerns cases appealed from one of the 2 High Courts.

4 Danish judicial system is based on the principle that a case may be tried at two instances and the further appeal requires permission; thus a judgement by the Town Court may be appealed and a decision by that Court acting at first instance may be appealed to the Supreme Court. Since City Courts competence has been extended over the years the number of the cases where the parties have the right of appeal to the Supreme Court has diminished so increasing importance should be attached to the conditions relating to the granting of permission to bring a case before the Supreme Court on a second appeal. The competence to give such leave lies with a board (Procesbevilklingsnaevnet) chaired by a Supreme Court judge and composed of two judges from the lower Courts, a practising lawyer and a professor in law and may be granted if the case involves issues of principles or if a review of established case may be needed. Civil cases may be divided into ordinary cases (about money); cases of rental of homes/shops; cases of family law; deprivation of liberty; legal representation; paternity cases; Criminal cases can be divided into: small cases with one judge involving minor offences (ending max with a fine); the cases concerning the defendant who pleads guilty with one judge; the Domsmandssager which are more severe cases (up to four years in prison) with one judge + 2 layjudges; the jury trial with three judges and 6 jurors. Trial by jury is reserved for the most serious crimes, in particular cases of murder and the serious drugtrafficking, unless the accused pleads guilty. Such cases are tried in the Court of Appeal acting as a High Court of first instance- sitting with three professional judges and 12 jurors. The jurors decide the question of guilt and a conviction requires the majority of 8 jurors. If the verdict of the jury is guilty the professional judges may set aside that verdict if they disagree, in that event there may be a new trial with different judges and jury. The penalty is determined by the judges (4 votes each) and the jury (1 vote each) sitting together. On the other hand if the defendant is found not guilty by the jury, the Court immediately acquits him. The penalty may be appealed to the Supreme Court, but that Court cannot in criminal cases inquire. Eligible as layjudges or jurors are persons appearing on a list composed by a committee appointed by the municipal councils between 18 and 70 years old, who have not criminal records, who have a sufficiently good health to fullfill this task and who are not in the government or work for the government and who are not a lawyer, a judge or a prosecutor or a priest in one of the recognised religious communities and the election is for a four year period. In civil cases trial by jury is unknown, and layjudges take part only in certain categories of cases, for instance in disputes between landlords and tenants where the judge decides the case with two layjudges representing the interests of owners and tenants, respectively. About the principles which govern the practise of Danish Court in criminal cases, Danish legal system is basically characterized by simplicity and not by strict formalism. The Administration of Justice Act expressly provides that a procedural error committed by the lower Court shall lead to the reversal of the judgement only if the proper observance of the rule in question might have led to another result.

5 Court hearings should generally be public and oral and the defendant has the right of contradiction, must not be discriminated on sex, race, religion, is considered innocent until proof of the opposite and he is only responsible for his own actions. 3. THE LAW OF THE HOST COUNTRY During the exchange we took part in lots of different activities: from the jury trial to the conference on the phone involving civil cases. Besides we also went to visit Copenhagen Jail which was a very interesting experience for me and for my work. First of all I was really very interested in the remarkable difference between our criminal system model and the Danish one concerning the judgement after the deliberation of the collegial Court. There are three principal sanctions in Denmark: imprisonment (7 days to 16 years or life); fine: day fines and ordinary fines; conditional sentence and community service. Moreover there is a new special indeterminate sanction, called preventive detention, which is rarely used, whose prerequisite is that the person concerned is convicted of a violent crime. When we went to Glostrup District Court we also witnessed at the final prosecutor s and defence s statements which was followed by the deliberation in the Council Court about the question of guilt. After the conviction of the defendant accused of robbery, there were two forms of custodial punishment, imprisonment and preventive detention and the Court could choose between them. Imprisonment is a limited custodial punishment; preventive detention could be a relatively short custodial punishment, but had a much higher maximum (prison for life). The decision concerning these two different kinds of punishment involves a matter which for example in our country is another segment of the criminal justice system. On the other side in Denmark professional judges during the trial have to decide on the social dangerousness of the accused and if they find him dangerous they convict him to preventive detention which could be unlimited; if they don t believe the accused is dangerous, they determine a detentive sanction, which is limited, that can be appealed to the Supreme Court. The idea is that the sanction should not first and foremost be determined on the basis of the crime committed, but rather by the need of the deviant person. What really surprised me was the speech of the defendant about his life, his family, his work and whatever could be interesting for the Court to understand the convict s personality in order to choose the suitable sanction for him. In Italian criminal system, the judge who decides to convict the accused must determine a penalty proportional to the crimes which the defendant is accused of and order in some fixed cases a detention that will be applied after the penalty. Such case is tried in another Court and is decided by a different judge who deals with the execution of penalty which in Denmark on the other hand belong to the administrative field.

6 With regard to this final criminal justice segment we also visited Copenhagen Jail which is open to everyone who is interested to know how inner life of the institution is and we knew that apart from Hells Angels, who are actually the most important criminal phenomena in Denmark, the inmates spend their week-end in their home and come back to the jail at the beginning of the week. The prison officer explained us that the decision of going out of the prison as well as the sanction enforcement is almost completely regulated by administrative rules. Besides inside the prison there were also a hospital with seven doctors, a school, a computer lab, a church and a very well stocked library. In Danish criminal law there s a principle according to which the inmates are to be considered ordinary citizens, since they have the same rights and obligations as those of non-inmates. The principle is reflected in the individual rules governing the rights and obligations of inmates during their stay in the custodial institution. For example, in general the inmates have a right to social contact with other inmates, a right to participate in religious services, a right to communicate with the others, a right to work and education, and a right to health care. Many rights of the inmates can be limited due to the need of order and security in the institution, as for instance, the right to one hour of fresh air and the limitations in the liberty of the inmates are subject to a general requirement of proportionality between means and objective. What I personally felt about the Danish system of sanctions is that the sanction should not constitute revenge for committed acts, but treatment of a person with a view to resocialization. The inner life of the institutions aimed at treatment of different deviant categories and frailties, not merely at preventing escapes; the staff is made up of not only prison guards but also teachers, psychologists and social workers. In Italian sanction system, after the conviction the person is followed during all the time he has to suffer the penalty by a special judge which is different from the one who convicted him and who decides every aspect of the deprivation of liberty (for instance the permission to go out of prison, the possibility to work outside the jail, the sanction enforcement and the possibility to reduce the penalty s length and so on). The main difference between the judge who states the judgement and the judge who follows the penalty execution is that the first one deliberates about a crime, the second one deliberates about the convict s possibility to be resocialized according to social security. IV. THE COMPARATIVE LAW ASPECT IN YOUR EXCHANGE Compared to many foreign legal systems the practise of Danish Courts is characterized by simplicity and is not strictly governed by formalities. On a number of occasions formalities are handled in a practical way in order to reach a reasonable result.

7 In criminal cases the Administration of Justice Act expressly provides that a procedural error committed by the lower Court shall lead to the reversal of the judgement only if the proper observance of the rule in question might have led to another result. The deliberation of a Collegial Court are nor public, but of course the judgement will state the reasons for the result apart from cases tried by a jury. Danish Courts are traditionally rather succinct when stating the grounds for the judgement, but in recent years there is a tendency towards a more elaborate reasoning. Compared to the rather lengthy explanations that are common in some other countries a Danish judgement makes it easy for the reader to identify the considerations which have been decisive for the Court. When we went to the Glostrup District Court we witnessed to the reading of the judgement after the deliberations of the Collegial Court and the Court s President read briefly the main reasons of the conviction explaining the evidence which the Court took in consideration to form its decision. In Italian criminal law the Court s President or the judge, the reading of the judgement depends on the crimes they have to judge, so they usually read only the part of the sentence concerning the defendant s conviction or acquittal, apart from cases concerning a defendant who plies guilty or matter of incompetence or the cases involving succinct reasons and fix a term to publish the complete reasons. With regard to Danish Civil Law, there are two kinds of civil trials: the small civil claim (not more than DKK) and ordinary civil cases (all other cases including family cases). The claimant writes the introductive claim and has to pay a fee depending on the value of the matter and the Court serves the claim to the defendant. If the defendant doesn t answer between 14 days the judge decides in favour of the claimant. If the defendant answers and denies the claim the judges doesn t prehearing. If the defendant answers and doesn t deny the claim, the judge tries to settle the case by fixing a conference on the phone; if during this hearing the parties manage to reach an agreement the lawsuit is close and the judge enters the settlement in the Court record and it becomes enforceable as a judgement. On the other hand, if the parties don t manage to reach an agreement, the judge fixes another hearing in the Court Room and the parties have to provide evidences. In the most civil cases the main interest of the parties is to obtain the solution to the conflict, so the parties don t need a lawyer but can stay in the proceeding on their own. Anyway the Court could give a defender to the party since the matter is so complex that he can t handle it by himself. In many cases a judge is able to form an opinion on the dispute shortly after he has heard the evidence and the pleadings of the counsels. The judge may then ask the parties whether they would be interested in hearing the conclusions of the Court and the grounds for that conclusion on the understanding that such an opinion would also form the conclusion of the written judgement. Obviously, the parties are free to ask for a written judgement either before or after having heard the oral presentation of the Court s opinion but in about one third of the cases they accept the opinion as a settlement and refrain from asking for a proper judgement. Then the settlement is entered in the records of the Court. This practise is an important time-

8 saving factor for the Courts. Moreover, the losing party expects a proper explanation on how the Court has reached its conclusions. However, a traditional judgment will contain a detailed statement of facts and evidence which in most cases will be needed only if appeal is considered by the losing party. In Denmark a ordinary lawsuit lasts from the beginning to the end about six months. Italian civil system provides that the lawyer has to appear on behalf of the client during all the civil proceeding. VI. THE BENEFITS OF THE EXCHANGE The exchange programme in Denmark was really interesting because it offered a succinct outline of the present state of Danish judiciary system within each individual area of the law was discussed. The general introduction to the Danish law will bring about a tool which might help identify the particular features of Danish law and will stimulate an interest to the comparison between such different law systems, as the Italian and the Danish one. This closer encounter with Danish law has confirmed that this particular system of law may present interesting ideas and useful contributions to the ingoing interchange between domestic law and European Community law. Anyway I found Danish judiciary system very different from ours, since Italian judicial practise is more linked to formalism probably because of the influence of Roman Law which was felt less in the Nordic countries than in the rest of Europe. So I wish that Danish judiciary practise which is very fast and well functioning could be borrowed by Italy, even if this would mean a complete radical change in our judicial practise. VII. SUGGESTIONS The exchange programme was really well organized and it provided us a brief but complete description of the present state of Danish Law with particular emphasis on aspects which may merit interest among an European audience. I really appreciated it and I deeply feel to have enriched my professional experience. That s why I don t think I could give any kind of suggestion to EJTN to improve it.

9 SUMMARY The exchange programme in Denmark took place from March 8 th til March 18 th. On Monday March 8 th we arrived at Fredericksberg District Court (Retten pa Frederiksberg) where we got explanations about the following day s programme and an introduction to the Danish Court system. On Tuesday March 9 th we went to Glostrup District Court (Retten i Glostrup) where we witnessed to a jury trial. On Wednesday March 10 th the jury trial continued at Glostrup District Court. On Thursday March 11 th we went to the Danish Court Administration where Maria Benedicte Rye Tarp told us about the Court system, the career system, the judges recruitment, the Judge School, the Judicial Appointments Council and so on. In the afternoon we had a tour of the building of the Supreme Court. On Friday March 12 th we went to the Police Station Borups Alle. On Monday March 15 th we went to Copenhagen Business School where we met Professor, PhD, LLM Peter Arndt Nielsen who gave us an introduction to the international commercial arbitration and talked us about the national and international regulation and also about the Danish experience. At we were invited to visit the law firm Kammeradvokaten which is a private solicitor s firm who represents the Danish State in almost all civil lawsuits. On Tuesday March 16 th we were waited in judge J.M.S room where we also met deputy judge M. D. They explained us how civil cases are dealt with in Denmark. On Wednesday March 17 th we had a tour in Copenhagen Jail. On Thursday March 18 th we visited the law firm Gorrissen, Federspiel and Kierkegaard which is considered the most international law firm in Denmark. Our hosting institution has been the District Court of Frederiksberg which has a President, 12 judges, and 15 deputy judges and approximately 80 civil servants. It is a town Court District including Frederiksberg and parts of Copenhagen city (approximately persons). After the reform on the structure of the judicial system in 3st December 2006, the Danish Court system consists of 24 District Courts, two Courts of Appeal (HC Western Division and HC Eastern Division) and the Supreme Court. The competence of City Courts concerns all first instance civil lawsuits and all first instance criminal cases; the competence of courts of appeal concerns all the cases appealed from the district courts and also principal or very important cases; the competence of Supreme Court concerns cases appealed from one of the 2 High Courts. Civil cases may be divided into ordinary cases (about money); cases of rental of homes/shops; cases of family law; deprivation of liberty; legal representation; paternity cases; criminal cases can be divided

10 into: small cases with one judge involving minor offences (ending max with a fine); the cases concerning the defendant who pleads guilty with one judge; the Domsmandssager which are more severe cases (up to for years in prisons) with one judge + 2 layjudges; the jury trial with three judges and 6 jurors. There are three principal sanctions in Denmark: imprisonment (7 days to 16 years or life); fine: day fines and ordinary fines; conditional sentence and community service. Moreover there is a new special indeterminate sanction, called preventive detention, which is rarely used, whose prerequisite is that the person concerned is convicted of a violent crime. We visited Copenhagen Jail. The prison officer explained us that the decision of going out of the prison as well as the sanction enforcement is almost completely regulated by an administrative staff. Besides inside the prison there were also a hospital with seven doctors, a school, a computer lab, a church and a very well stocked library. Compared to many foreign legal system the practise of Danish Courts is characterized by simplicity and is not strictly governed by formalities. On a number of occasions formalities are handled in a practical way in order to reach a reasonable result. The deliberation of a Collegial Court are nor public, but of course the judgement will state the reasons for the result apart from cases tried by a jury. Danish Courts are traditionally rather succinct when stating the grounds for the judgement, but in recent years there is a tendency towards a more elaborate reasoning. Compared to the rather lengthy explanations that are common in some other countries a Danish judgement makes it easy for the reader to identify the considerations which have been decisive for the Court. With regard to Danish Civil Law, in the most civil cases the main interest of the parties is to obtain the solution to the conflict and the parties don t need a lawyer but can stay in the proceeding on their own. The judge may then ask the parties whether they would be interested in hearing the conclusions of the Court and the grounds for that conclusion on the understanding that such an opinion would also form the conclusion of the written judgement. Obviously, the parties are free to ask for a written judgement either before or after having heard the oral presentation of the Court s opinion but in about one third of the cases they accept the opinion as a settlement and refrain from asking for a proper judgement.