THE SUPREME COURT of DENMARK

Transcription

1 THE SUPREME COURT of DENMARK Date May 3th 2012 Concerning the Network of the Presidents of the Supreme Judicial Courts of the European Union Fifth Colloquium (Paris, fall 2012) Questionnaire I. - Appointment of judges to the Supreme Court 1) Are open positions to judgeships at the Supreme Court publicized? Yes. The vacancy as a Supreme Court justice is announced and publicized. 2) Who can apply to judgeships at the Supreme Court (is there a ratio for candidates not already members of the judiciary)? According to paragraph 42 of the Danish Administration of Justice Act only candidates who have passed a judicial exam (master of laws) can be appointed judge. Everybody with a judicial exam can therefore (in theory) apply for a judgeship at the Supreme Court. There is no ratio for candidates not already members of the judiciary. There is however a general aspiration of employing judges with various professional backgrounds in the judiciary system. 3) How is conducted the selection of the Applicants to Supreme Court positions: which body is practically in charge of drawing up the list of candidates? What are the criteria for nomination on the list of candidates (age, seniority, qualifications, etc.)? Are those criteria publicized? Is there a hearing of the selected candidates? By whom? The appointment of any judge in Denmark, except for the president of the Supreme Court, is made on the basis of a nomination by the independent Judicial Appointments Council. Prins Joergens Gaard 13 DK-1218 Copenhagen Phone: Fax:

2 - 2 - The Judicial Appointments Council consists of a judge from the Supreme Court, a judge from a court of appeal, a judge from a city court, a practicing lawyer and two public representatives who cannot be a member of Parliament or of a municipal council. The independent Judicial Appointments Council is responsible for drawing up the list of candidates and making the final nomination of one candidate. The Supreme Court submits a recommendation, see the answer to question 4. There are no formal criteria for the nomination of the candidate, except for the judicial exam, see answer to question 2. The candidate is therefore nominated after an overall evaluation of the applicant s judicial and personal qualifications, hereunder the applicant s professional experience. The Judicial Appointments Council hereafter nominates one candidate for the vacancy as a Supreme Court judge. The nomination of the Council is given to the Minister of Justice, who as the head of state, the Queen of Denmark is supposed to follow the recommendation of the Council. If one position is available only one name is nominated. The candidate after approval of the Minister must then pass a test by rendering his og her opinion in four cases in the Supreme Court (without participating in the decision), after which the candidate is assessed by the appointed Supreme Court justices. Upon the approval by the other Supreme Court justices the candidate is appointed Supreme Court justice. 4) Is the Supreme Court (through a specific body of the Supreme Court or in conjunction with other bodies?), and especially its President, involved in the selection process of Applicants? And in the appointment process of those who are selected (proposal, recommendation, requirement of approval, etc.)? The president of the Supreme Court receives a list of candidates from the Judicial Appointments Council. On the basis hereof the president - after consulting the other judges of the Supreme Court - submits a recommendation concerning the specific candidates to the Judicial Appointments Council. The recommendation will only nominate one candidate. As far as the following nomination and approval see the answer to question 3.

3 - 3-5) Which State bodies (other than Councils for the judiciary and Supreme Courts) are involved in the selection and appointment process of Supreme Court judges? The Minister of Justice and the Queen of Denmark, see the answers to questions 3 and 9. 6) Is there transparency of the selection process (number of applicants, selection criteria )? And of the appointment process (publicity of the list candidates, public hearing, etc.)? The list of applicants/candidates and the specific criteria for the Judicial Appointments Council s nomination of one of the candidates are not published. There is no public hearing etc., see the answer to question 3. 7) Who reaches the decision to appoint among the selected candidates? On which criteria (merit, representativeness of the society, professional experience, etc.) See the answer to question 3. 8) Can the selection of an Applicant at the Supreme Court be appealed? By whom? To whom? And regarding the decision to appoint the selected candidate? The Appointments Council s nomination of an applicant as a candidate for the vacancy as a Supreme Court judge cannot be appealed, but as the candidate must pass a test by participating in four cases in the Supreme Court and render his or her opinion on these cases and be approved by the supreme court judges, there is an ensuring of quality that excludes appointment of candidates without the sufficient qualifications. The final appointment of the approved new Supreme Court judge is also none-appealable. Article 64 of the Danish Constitution provides for the independence of a judge. According to article 64 judges shall be guided solely by the law. Furthermore article 64 guarantees the protection of a judge against arbitrary dismissal or transfer. According to the Danish Administration of Justice Act a judge can only be dismissed or transfered by a court decision in case of misconduct or lasting illness. Such cases are decided by the Special Court of Indictment and Revision. The members of the Special Court of Indictment and Revision are one judge from the Supreme Court, one judge from a court of appeal, one judge from a city court, one practicing lawyer and one law professor at university. The judgment of the Special Court of Indictment and Revision can be appealed to the Supreme Court.

4 - 4-9) Who carries out the appointment (Head of State )? May the appointing authority refuse to appoint? The Minister of Justice appoints by nomination of the Judicial Appointments Council (and after the appointed Supreme Court judges approval, see the answer to question 3) the new Supreme Court judge. The Minister is not bound to follow the council s nomination, but is supposed to do so. The Minister has so far not departed from the council s nomination. The appointment is formally issued by the Queen of Denmark. 10) Are you satisfied of the prevailing conditions in your country? Which modifications would you suggest? I am satisfied with the current procedure and there is for the time being no need for modifications. II. Appointment of judges to the Court of Justice of the European Union and to the European Court of Human Rights 1) What are the qualifications for the candidates (independence and impartiality, professional experience, legal training, linguistic abilities, ability to work in an international environment)? Neither the EU Treaty nor EDF Treaty contains provisions on the national procedures to be followed in the appointment of candidates for the post of judge at the Court. According to EDF Article 253 the judges in the European Court of Justice shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices, or are lawyers professional skills are widely recognized. Judges appointed to the General Court must be candidates whose independence is beyond doubt and who possess the necessary qualifications for appointment to high judicial office in accordance with EDF Treaty Article 254 Neither the European Convention on Human Rights (ECHR) contains provisions on the national procedures to be followed in the appointment of candidates for the post of judge at the European Court of Human Rights. According to ECHR Article 21, the judges shall be of high moral character and they must either possess the qualifications required for appointment to high judicial office or be

5 - 5 - jurisconsults of recognized competence. In 2004 Council of Europe Parliamentary Assembly adopted a recommendation to use the following criteria for nomination of candidates for the European Court of Human Rights: The post should be advertised in professional journals. Candidates should have experience in human rights field. There should be candidates of both sexes on the list. Candidates should master either French or English as working language. Candidates should be presented in alphabetical order on the list. Candidates, whose appointment will involve a need for use of ad hoc judges (because of the judge's disqualification in specific complaints) should not be selected. In addition, very recently the European Council in 2012 adopted non-binding guidelines for the appointment of judge candidates for the European Court of Human Rights, which states, that all candidates should meet certain basic requirements and that the selection of candidates should be done with the involvement of an independent expert body ("selection body"). It is being considered at present to what extent the latter guidelines should lead to changes in the existing Danish procedure for selecting candidates for international judicial posts. The Danish judge at the ECHR as well as the ECJ were both Supreme Court Justices when appointed to the international court. 2) How is selection of the candidates conducted on national level? Since 2007 the government by the appointment of judge candidates has operated in accordance with the criteria set by the Council of Europe Parliamentary Assembly in the recommendation from Denmark established in 2007 a list of candidates for a Danish judge at the European Court of Human Rights, after prior public notice containing a description of the relevant criteria. 3) What is the transparency of the selection/appointment process? The purpose of the change in 2007 was to ensure greater transparency about the process.

6 - 6-4) What is and should be the role of the Governments? Should a non-government supported application be taken into consideration? It is the position of Danish judges that the government should act on the basis of a recommendation of the independent Judicial Appointments Council or a national body similar to this Council. 5) Are the Presidents of the Supreme Courts consulted or otherwise involved? There is no formal requirement on the involvement of the President of the Supreme Court. 6) Is the European Courts or their members involved in the process (officially/unofficially)? There is no formal requirement on such involvement. 7) How could the Network be of help to the Committee set up under Article 255 of the Lisbon Treaty for nominations at the Court of Justice of the European Union (approval of the proposals)? The Network should not get involved in the procedure.