Strasbourg, 1 February 2006
Consultative Council of European Judges (CCJE)
Questionnaire on “The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of Denmark
”The role of judges in striking a balance between protecting the
public interest and human rights in the context of terrorism”
approved by the CCJE
at its 6th meeting (23-25 November 2005)
A. Availability of information and documentation on all international legal instruments relevant to judicial activities (point IV (d) of the framework action plan)
Courses in international law in general and the law of European Union specifically are a mandatory part of a Danish graduate degree in law, which is a necessary prerequisite for appointment as judge. Courses on contract, tort, competition, patents etc. needed for the law degree will comprise the relevant international and European law aspects.
Judges themselves decide which, if any, courses offered by the Court Administration, or any other institutions for that matter, to attend. Participation is purely voluntary. Judges are presently not offered specific courses in international law or European law, but these subjects are instead integrated in general courses.
Judges do not receive full information on recent legislation and case-law at the European and international levels. The Ministry of Justice periodically issues a list with a résumé of recent case-law of the European Court of Human Rights of significance for the national courts. These lists are available on the intranet of the Danish Court Administration. In addition, all judges have access to the internet.
Danish judges are expected to be in command of at least one foreign language. Judges have the opportunity to attend foreign language courses. These courses are free of charge. None of the Danish courts have legal translation facilities. In dealing with cases the necessary translation have to be provided by the parties.
B. Dialogue between national and European judicial institutions (point IV (c) of the framework action plan)
The Supreme Court participates in the various networks and associations for European high courts (supreme, constitutional, administrative). The judges association is an active member of the European associations. Funding for receiving European colleagues and for visiting European courts is available. Thus, in many informal and indirect ways dialogue between the national courts and the European courts is enhanced.
Every year 5-7 judges (out of the total number of Danish judges: 337) visit the Court of Justice of the European Communities. A number of judges participate in international conferences and meetings bringing together national and European courts.
C. Application by national courts of the European Convention on Human Rights and the case-law of the European Courts of Human Rights, European community law and other international legal instruments (point IV (b) of the framework action plan)
a) The ECHR was enacted into national law in 1992. The convention is – as any other act of Parliament – ranked below constitutional provisions.
b) EU- treaties are ranked below constitutional provisions.
c) Case-law of the European courts is ranked below constitutional provisions.
d) International treaties are ranked below constitutional provisions.
To the first question: Yes, - provided it is not a provision of our constitution and the legislator has not explicitly against the court ruling upheld the provision.
To the second question: Yes, indirectly within the framework of general principles of law.
Supreme Court (in civil cases) or the Special Court of Revision (in criminal cases) may decide to reopen the case or admit an extraordinary appeal, where a national ruling has been deemed in violation of the ECHR. This is also the case where a hitherto accepted legal usage is later found to be in violation of the ECHR. Depending on the circumstances a claim for compensation may be relevant in a specific case and there are certainly no rules which a priori exclude such a claim from being lodged.
D. The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism
Denmark complies with and implements such treaties, insofar as they have been acceded to. Furthermore, when relevant the recommendations and other such instruments from the Council of Europe are, as a natural part of the Danish legislative process, taken into account by the lawmakers.
Yes, Denmark has adopted substantive measures specifically applicable for cases with suspicion about terrorism. As concerns the second part of the question, the role of the judge in such proceedings does not differ from his or her role in ordinary proceedings. Judges have an equal obligation to reconcile the demands of security and the protection of human rights in cases where suspicions of terrorism are warranted as in cases where there are no such suspicions. As such, it is a primary obligation of the judiciary in every criminal case to oversee, that all legal safeguards which guarantee the defendant’s right to a fair trial are duly observed.
No special measures are applied. We refer to the answer of question D.2. We can not quote specific cases where the question about such reconciliation has been raised.