DEN
 
DENMARK
Supreme Court (Højesteret) 
 
I.   Introduction
There is no special constitutional court in Denmark. The examination of the constitutionality of acts or administrative regulations is left therefore to the ordinary courts of law.
In 1660, an absolute monarchy was introduced in Denmark and it was made statutory by The Kings Acts of 14 November 1665. Already in 1661, the King had issued a decree about the highest court of the Kingdom, the Supreme Court. Regardless of the fact that the Supreme Court was formally under the authority of the King, quite soon it acquired a status in practice which was essentially independent of the King, who intervened in very few cases. However, it was only with the transition to a constitutional monarchy, introduced after a revolutionary wave by the Constitution of June 1849, that the courts of law were formally separated from the legislative and the executive powers.
II.   Basic texts
-   Constitution (Sections 59-65);
-   Administration of Justice Act.
III.   Composition, procedure and organisation
1. Structure of the Judiciary
The Danish judiciary, which is regulated by the Administration of Justice Act, consists of courts of law at three levels: the District Courts, the High Courts, and the Supreme Court. As a general rule, however, a case can only be tried in two instances.
Most cases both civil cases and criminal cases start in the District Court with a right of appeal to the High Court. However, if the case concerns a matter of principle, an independent board, (Proces-bevillingsnaevnet), chaired by a Supreme Court judge and composed of 2 judges from the lower courts, a practising lawyer and a professor of law, may grant leave for the case to be tried before the Supreme Court in the third instance. For certain minor cases, an appeal to the High Court also depends on leave being granted by an independent board.
Cases concerning trial of administrative decisions are as a general rule tried before the High Court at first instance with the possibility of an appeal to the Supreme Court. Further, the District Courts have the possibility, when requested by one of the parties, of referring civil cases on a matter of principle to the High Court, from whose decisions a right to appeal to the Supreme Court is automatic.
Criminal cases, where the offence is punishable by imprisonment for four years or more, and criminal cases concerning political crimes, are tried before the High Court at first instance with lay judges assisting. When sentences are appealed to the Supreme Court, this Court may evaluate only the legal basis: it cannot change the assessment of evidence.
However, the Administration of Justice Act has been amended in 2006. As from 1 January 2007 all cases, civil as well as criminal, shall start before the district court. An appeal may, as a matter of right, be brought to one of the two High Courts. A further appeal to the Supreme Court requires leave from the above-mentioned board. When requested by a party, the district court may refer a civil case involving questions of principle to the High Court, which will then be the court of first instance. In such a case, an appeal to the Supreme Court needs no leave. The reform will enable the Supreme Court to concentrate on cases involving questions of principle or raising a point of general interest.
As a consequence of the distribution of competence between District Courts, High Courts and the Supreme Court and of the possibility of granting leave to try cases on matters of principle before the Supreme Court, cases concerning the compliance of acts or administrative provisions with the Constitution, EC law and the European Convention on Human Rights will normally be tried in the last instance by the Supreme Court. However, there is nothing to prevent such a case from being decided finally at a lower level.
2. Composition of the Supreme Court
The Supreme Court is composed of its President and 18 other judges. Like the judges of the lower instances, Supreme Court judges are formally appointed by the Queen on the recommendation of the Minister of Justice. The latter is advised by an independent Council for the Appointment of Judges (Dommerudnaevnelsesraadet). The Council is chaired by a Supreme Court judge and composed of two of the judges, one a practising lawyer and two members representing the general public. The Council will submit the name of only one candidate to the Minister, who is supposed to follow the recommendation of the Council. The appointments are unlimited in time, but subject to the normal age of retirement (70 years) and it follows directly from the Constitution that judges can only be removed by a court decision.
3. Procedure and organisation of the Supreme Court
The Supreme Court functions in two chambers usually composed of five judges. The Supreme Court may decide, however, that a larger number of judges or all of them shall participate in a case. This is particularly the case in decisions on the constitutionality of an Act.
The procedure of the Supreme Court is more formal than in the lower instances but in principle it is regulated by the same provisions of the Administration of Justice Act. Cases are usually tried verbally but the initial preparation will be written. Certain types of decisions, including especially procedural decisions, are dealt with on a written basis. In such cases the Supreme Court makes its decision in a committee comprising three judges.
It is common practice that a party is represented by a lawyer before the Supreme Court. It is a condition for being entitled to plead before the High Courts that the lawyer in question has passed a special test in procedure and, before the Supreme Court, that the lawyer in question shall have at least five years regular practice in procedure before the High Courts.
Court decisions of broader interest, i.e. decisions made by the Supreme Court and selected decisions of the High Courts, are published in a weekly periodical, Ugeskrift for Retsvaesen.
IV.   Jurisdiction
By the Constitution, whose most recent amendment was by Act no. 169 of 5 June 1953, the courts of justice were given explicit powers to decide on questions concerning the limits of the administration (Section 63 of the Constitution). At the same time a provision was introduced in the Constitution establishing special constitutional courts, but this provision has never been used, nor are there any plans for using it. If such courts of justice should be established, their decisions must be subject to appeal to the highest court of the Kingdom, the Supreme Court.
The Constitution does not explicitly state that the courts of justice have authority to test the constitutionality of enactments. This has been invariably assumed in theory as well as in practice, so
that such a power of review is regarded as established by constitutional practice.
The testing of the constitutionality of an Act can assume the following forms:
-   testing of whether the legislative procedure has been adhered to;
-   testing of whether the separation of powers has been adhered to;
-   testing of whether an Act is materially constitutional, having regard for example to civil and political rights.
Legal action can be taken only by a party with a particular and individual interest in having a decision on a question. Thus, the concept of “popular complaint” is unknown in the Danish administration of justice. Nor has the Folketing (Danish Parliament) any possibility of having opinions from the courts on the constitutionality of a Bill. Such questions are usually settled by the Parliament asking the Minister of Justice for opinions.
In practice, the courts of law have been cautious in considering the constitutionality of Acts, thereby according the legislative power a margin of appreciation in difficult questions of evaluation or construction.
V.   Nature and effects of decisions
Review of the constitutionality of an Act takes place in tandem with the consideration of all other legal and factual circumstances of a case. If a court of law should find an Act unconstitutional, it cannot repeal it, but is limited to deciding whether the Act shall be applied in the concrete case put before the court for adjudication. If an Act has been considered to be invalid in a concrete case, the decision nonetheless has a general and normative valve, because as a precedent it means that the application of the Act will be paralysed in all similar future cases.