REPORT ON GREENLAND S JUDICIAL SYSTEM

Transcription

1 REPORT ON GREENLAND S JUDICIAL SYSTEM SUMMARY SUMMARY COMMISSION ON GREENLAND S JUDICIAL SYSTEM Report No. 1442/2004

2 Kronologisk fortegnelse over betænkninger Frist- og forældelsesregler på skatte- og afgiftsområdet 1427 Reform af den civile retspleje II 1428 Retssikkerhedskommissionens betænkning 1429 Forenklinger i jordlovgivningen 1430 Betænkning fra Udvalget om Aktieoptioner 1431 Betænkning om straffeprocessuelle tvangsindgreb over for børn under den kriminelle lavalder 1432 Valgret under udlandsophold 1433 Betænkning om forbrugerbeskyttelse ved erhvervelse af byggematerialer 1434 Strukturkommissionens betænkning 1435 Betænkning om den militære straffelov, retsplejelov og disciplinarlov 1436 Betænkning om reform af den civile retspleje III 1437 Et nyt udligningssystem 1438 Forældelse af strafansvaret for særlovsovertrædelser m.v Betænkning om bortvisning af voldelige og truende personer fra hjemmet 1440 Betænkning om revision af forbrugeraftaleloven 1441 Straffelovrådets betænkning om forældelsesretlige spørgsmål 2004 IT- og Telestyrelsen Holsteinsgade 63, 2100 København Ø Telefon Fax

3 REPORT ON GREENLAND S JUDICIAL SYSTEM SUMMARY COMMISSION ON GREENLAND S JUDICIAL SYSTEM Report No

4 Report No on Greenland's Judicial System The publication is available in print from the online bookstore of Danmark.dk Telephone or it can be downloaded from the website of the Danish Ministry of Justice. ISBN ISBN (Internet) Bind 1 Generelt om retsvæsnet ISBN Bind 2 Retsplejen og domstolene ISBN Bind 3 Kriminaliteten og kriminalforsorgen ISBN Bind 4 Politiet, opfølgning mv. ISBN Bind 5 Lovudkast 1. del ISBN Bind 6 Lovudkast 2. del ISBN Bind 7 Litteratur og bilag ISBN DKK 1,000 incl. VAT Kalaallit nunaanni eqqartuussiveqarneq pillugu isumalliutissiissut 1442 ISBN ISBN (Internet) Atuagaq 1 Eqqartuussiveqarneq pillugu nalinginnaasut ISBN Atuagaq 2 Eqqartuussisaaseq eqqartuussiviillu ISBN Atuagaq 3 Pinerlunniartarneq aamma pinerluttunik isumaginnittoqarfik ISBN Atuagaq 4 Politiit, malitseqartitsineq il.il. ISBN Atuagaq 5 Inatsisissatut missingiut immikkoortoq 1 ISBN Atuagaq 6 Inatsisissatut missingiut immikkoortoq 2 ISBN Atuagaq 7 Atuakkat atorneqartut ilanngussallu ISBN DKK 1,000 incl. VAT Resume ISBN DKK 150 incl. VAT Naalisarnera ISBN DKK 150 incl. VAT Summary ISBN DKK 150 incl. VAT Printed by: Schultz Grafisk

5 3 CONTENTS INTRODUCTORY PART (Chapters I to V of the Report) Introduction Terms of reference of Commission Composition of Commission Methodology of Commission Report of Commission General background information Major Commission proposals Some implemented proposals ADMINISTRATION OF JUSTICE (Chapters VI to XI of the Report) Chapter VI Court organisation and staff, etc Introduction Retrospective look Current administration of justice system Assessment by the Commission of the current system Commission proposals Chapter VII Process agents, defence, attorneys and legal aid Process agents (civil proceedings) Defence Attorneys Legal aid Chapter VIII Provisions common to all legal proceedings, etc Introduction Court language Oral proceedings and the principle of immediacy Open trials Form of court rulings Court records Service of documents Witnesses Expert opinions Chapter IX Civil proceedings Introduction Rules of procedure Debt collection proceedings Legal costs court fees... 39

6 4 5. Exemption from court fees Chapter X Criminal proceedings Introduction Prosecution The defence in criminal proceedings Victim s procedural position General comments on investigation and coercive measures The individual measures Institution of criminal proceedings Criminal proceedings in court Judgment Chapter XI Appeal and reopening. Enforcement (proceedings) Appeal and reopening Introduction Appeal of judgments from courts of first instance Appeal to the Supreme Court Interlocutory appeal Exceeding time-limits Cross appeals Scope of the High Court review Principle of immediacy Enforcement proceedings (enforcement law) Introduction Authority Bases of enforcement Objections during the enforcement proceedings Attachment Injunctions Possession of mortgaged property Forced sales of real property and chattels CRIME, PRISONS AND PROBATION (Chapters XII to XVII of the Report) Chapter XII Crime Recorded crime extent and trends Causes of crime empirical correlations Causes of crime influencing potential Victims of crime Chapter XIII Crime prevention measures Introduction Retrospective look Current arrangement Commission deliberations and proposals... 65

7 5 Chapter XIV General provisions and the individual offences General deliberations General provisions Individual offences Chapter XV Sanctions General deliberations Presentation of individual sanctions Transfer and cessation of sanctions Chapter XVI Enforcement of sanctions Introduction Current arrangement Commission proposals on organisation and structure Enforcement of supervision sanctions Enforcement of prison sentences Staff and training consequences Capacity development after Chapter XVII Treatment of remand prisoners and other detainees Detentions Attendance on and treatment of detainees Probation work POLICE (Chapter XVIII of the Report) Chapter XVIII Police activities Introduction Current arrangement Studies Police complaints boards Assessment of police structure Changes proposed by the Commission CONCLUDING PART (Chapters XIX-XXVI of the Report) Chapter XIX Follow-up on Commission proposals Background Commission proposals Chapter XX Commission proposals for councils, committees, etc Chapter XXI Aggregate financial consequences Chapter XXII Transfer to Home Rule Background Deliberations of principles Advantages and drawbacks of transfer Consequences for particular fields of responsibility Consequences of isolated transfer of fields of responsibility

8 6 6. Financial consequences Chapter XXIII Administration of Justice Bill for Greenland with notes Chapter XXIV Penal Bill for Greenland with notes Chapter XXV Bill amending various provisions in connection with the entry into force of a new Administration of Justice Act and Penal Code for Greenland with notes Chapter XXVI Lists of literature and appendices

9 7 INTRODUCTORY PART (Chapters I to V of the Report) 1. Introduction The judicial system of Greenland differs markedly in several ways from the judicial systems of other countries. District judges, lay assessors and lay counsel (defence counsel) are lay locals and not lawyers (law graduates). Only when a case is brought before the appeal court, the High Court of Greenland [Grønlands Landsret], do legally trained prosecutors, judges and attorneys become involved. The judicial system is bilingual, both Greenlandic and Danish are spoken and written. Greenland does not have a penal system as known in Western countries either. Judges in criminal proceedings have a wide range of sanctions to choose between, laid down in a Penal Code [kriminalloven] prescribing no minimum or maximum penalties. Prisons are open, and to the extent possible inmates have to work outside the prison. Since the judicial system was designed half a century ago, the Greenlandic society has undergone quite an intense development. Society is far more complex now. One manifestation of this is the ever more comprehensive and complex legislation, which increases demands on the legal expertise of the judicial system. At the same time, the population has migrated from settlements and concentrated in towns, the old family patterns have changed, and the industrial development has been intensive. The large social changes resulted in a noticeable increase in recorded crime until the 1980s, whereupon it has generally fallen, although aggravated violence, sexual offences and homicide occur fairly frequently. The judicial system with pertaining legislation is one of the few areas that cannot pass to Greenland under the current Home Rule scheme. The Danish Parliament [Folketinget] still retains legislative power, and the administration is handled by Danish authorities. In 1994, in view of the changes in society, the Danish Government and the Greenland Home Rule [det grønlandske hjemmestyre] set up the Commission on Greenland s Judicial System [Den Grønlandske Retsvæsenskommission] chaired by Per Walsøe, Supreme Court Judge, and totalling 16 members appointed by the Danish Government and the Greenland Home Rule. The main task of the Commission has been to perform a thorough review and reassessment of the entire judicial system of Greenland and on that basis to make proposals for its possibly fundamental revision. 2. Terms of reference of Commission The terms of reference of the Commission are as follows: The Penal Code and the Administration of Justice Act [retsplejeloven] for Greenland have existed in a basically unchanged form for soon 40 and 30 years, respectively. These important laws for the Greenlandic society were drafted then in the light of the

10 8 social structure and the values and customs that characterised the Greenlandic society at that time. In the meantime, social conditions in Greenland have changed decisively in a number of fields. In view of this development and the debate following in its wake, a thorough review and reassessment of the entire judicial system in Greenland have become necessary. Deliberations on a new scheme should be made, as was the case with the existing scheme, with regard for the special Greenlandic conditions, including the traditions associated with Greenland s judicial system, and the national character of Greenlanders. Thus, it would still be desirable to maintain the original fundamental idea of the Penal Code with rehabilitation as the basis of criminal sanctions as well as its principles of extensive lay contribution to the administration of justice. Moreover, it should be ensured that Greenland s judicial system meets the international obligations incumbent on the realm, including particularly the human rights obligations. The work of such a thorough revision of Greenland s judicial system should be carried out by a special, broadly composed commission with representatives of the Greenlandic authorities as well as of the authorities of the Danish realm. The Commission will be appointed by the Ministry of Justice [Justitsministeriet] following negotiation with the Greenland Home Rule Government [Landsstyret] and with a composition as shown in the appendix. The Commission is requested to review and assess the current police authority in Greenland and suggest any changes required. Moreover the Commission shall review and assess the current Prison and Probation Service in Greenland [Kriminalforsorgen i Grønland], including probation and aftercare as well as prison facilities. In this connection the Commission shall consider and describe how to establish special prison facilities in Greenland so as to bring to an end the current arrangement for Greenlanders sentenced to safe custody, who serve in the Herstedvester Institution in Denmark, and the Commission may also propose further reforms in this field. In addition, the Commission is requested to review and assess Greenland s administration of justice system. In that connection the Commission shall make proposals for any changes building upon the good experience with the district judge scheme in Greenland. In connection with these deliberations, the Commission shall also prepare plans for the development of a system of training or courses for the various staff groups within the judicial system. The deliberations of the Commission may include a potential transfer of parts of the judicial system in Greenland, including in particular the Prison and Probation Service, to the Home Rule. It is assumed that the Commission will make proposals for the financ-

11 9 ing of the various tasks when assessing the financial and administrative consequences of such transfer. In connection with the above deliberations, the Commission is also requested to review and draft a revision of the Penal Code for Greenland in connection with its proposals, incorporating such amendments as are deemed necessary or desirable. In that connection the Commission should be aware of the debate on minimum and maximum penalties and types of sanctions in Greenland in recent years. Moreover, the Commission shall review and draft a revised Administration of Justice Bill for Greenland in accordance with its proposals, incorporating such further amendments as are deemed desirable or appropriate. In this connection, the Commission should be aware of the need to introduce statutory rules on exemption from court fees and free legal aid that can safeguard citizens access to the legal system, and of the potential for rationalising and improving the rules for or the practicalities of service of documents. Also the question of new rules on attorneys activities in the administration of justice in Greenland should be assessed in detail. It is assumed that the Commission will set up working groups to prepare contributions on the issues considered for submission to the Commission. Both the Commission and the working groups may involve experts and representatives of authorities or organisations in their work. It is furthermore assumed that the Commission will complete its deliberations within three to four years and that the Greenland Home Rule Government is suitably briefed on the work of the Commission. During its work, the Commission may make its preliminary deliberations known to a larger group of persons for example in the form of one or more seminars so as to gather their immediate reactions to the deliberations. The work of the Commission is no bar to the implementation of particularly urgent changes in some fields. In that event, the Commission may submit an advance report on such issues. The Ministry of Justice shall defray the expenses involved in the work of the Commission, including expenses for secretarial assistance and travel expenses. 3. Composition of Commission At the time of reporting, the Commission has the following members: Per Walsøe, Supreme Court Judge, Chairman Nukákuluk Kreutzmann, Director, upon recommendation by the Home Rule Government Sólja í Ólavsstovu, former Director, Home Rule Government Secretariat, upon recommendation by the Home Rule Government

12 10 Martha Labansen, the Association of Local Authorities in Greenland [Kanukoka], Director, upon recommendation by the Home Rule Government Mads B. Christensen, Police Inspector of the Office of the Chief Constable of Greenland [Politimesteren i Grønland], upon recommendation by the Police Association of Greenland [Grønlands Politiforening] Mille Søvndahl Pedersen, District Judge, the District Court of Nuuk [Kredsretten i Nuuk], upon recommendation by the District Judge Association of Greenland [Kredsdommerforeningen i Grønland] Anda Lynge, Lay Counsel, attached to the District Court of Aasiaat, upon recommendation by the Home Rule Government Elisæus Kreutzmann, Prison and Probation Service Manager, the Prison and Probation Service division for Greenland, upon recommendation by the Home Rule Government Finn Breinholt Larsen, Social Scientist, Aarhus County, upon recommendation by the Home Rule Government Thomas Rørdam, Supreme Court Judge, upon recommendation by the Council of the Danish Bar and Law Society [Advokatrådet] Søren Søndergård Hansen, High Court Judge, the High Court of Greenland Jørgen Meyer, Chief Constable of Greenland Gunnar Martens, former High Commissioner, upon recommendation by the Danish Prime Minister s Office [Statsministeriet] Jens Kruse Mikkelsen, Head of Department, the Danish Ministry of Justice Karsten Petersen, Chief Constable, the Office of the National Commissioner of Police, upon recommendation by the Danish National Commissioner of Police [Rigspolitichefen] William Rentzmann, Director-General, the Danish Ministry of Justice, Department of Prisons and Probation [Direktoratet for Kriminalforsorgen] The composition of the Commission at its appointment and the subsequent changes are described in chapter I of the Report. Various individuals from Greenland and Denmark have been attached to the Commission and/or its working groups as expert advisors. At the time of reporting, the following individuals were expert advisors: Jens Møller, District Judge, the District Court of Ilulissat Marianne Højgaard Pedersen, Supreme Court Judge Annette Esdorf, Deputy Director-General, the Danish Ministry of Justice, Department of Prisons and Probation The Home Rule Government and the Danish Ministry of Justice, including the Department of Prisons and Probation, have made a secretariat available, headed by Lise Kock, Deputy Prison Director. 4. Methodology of Commission The Commission has held 17 residential meetings, each lasting about one week, ten of which were held in various towns in Greenland. From the very beginning the Commission planned

13 11 its work so that three working groups together covered all of Greenland s judicial system. They are: The Administration of Justice Group, whose assignment has been to review and assess Greenland s administration of justice system and to draft a new Greenlandic Administration of Justice Bill. At the time of reporting, Martha Labansen chaired this working group. The Prison and Probation Group concerning the system of sanctions and the Prison and Probation Service, the main assignment of which has been to analyse and assess the system of sanctions and enforcement of sanctions in prisons and in the community and to draft a Penal Bill for Greenland. The chairman of this working group was William Rentzmann. The Police Group, which was entrusted with the task of analysing and assessing the police and its work, the general conditions of liability and offences stipulated by the Penal Code, and also of drafting such parts of the Administration of Justice Bill as relate to police activities. At the time of reporting, Jørgen Meyer chaired this working group. Several special assignment working groups have made recommendations that have formed part of the deliberations and proposals of the Commission. These groups are: A Debate and Information Group, whose task was to involve the Greenlandic community, not least the population, in a discussion on the judicial system and its conditions through public information and debates, an Educational Group, which was asked to prepare plans for the development of a system of training and courses for the various staff groups of the judicial system, particularly for district judges and defence counsel, a Research Group, whose task was to be in charge of and co-ordinate the concrete studies planned by the Commission, and via contacts to scientists interested in Greenland to seek to create a research environment in constant dialogue with the judicial system, a Settlement Working Group appointed to uncover the problems of the judicial system in the settlements (local bailiffs, detention needs), a Working Group for Establishing Central Translating and Interpreting Functions, to cover the courts and the High Commissioner, the police and the Prison and Probation Service, a Working group on the Introduction of Community Service as a new sanction in Greenland, a Working Group concerning Enforcement of Claims in Greenland, which has mapped enforcement proceedings and the division of such work between the judicial system and the Home Rule, and a Working Group on video questioning of children in sexual offence cases. The Commission and its members have also gathered information, experience, views and positions on the overall judicial system at meetings with specially invited individuals, by conference attendance, study trips, etc.

14 12 The preliminary deliberations and views of the Commission were presented and discussed at a two-day conference in Nuuk in March 1997 and a one-day conference in Copenhagen in December Both conferences were attended by representatives of the judicial system and the public as well as politicians. The conference papers and the conference results have been published. 5. Report of Commission The introductory part of the Report (chapters I to V) describes the terms of reference of the Commission and its composition and gives an overview of its methodology and proposals. This introductory part also includes general chapters (cf. section 6 below), which form the background of the following main parts describing the individual fields of justice. The main parts of the Report describe the administration of justice (chapters VI to XI), crime (chapters XII to XVII) and the police (chapter XVIII). All three areas have been revised in depth, both concerning organisation and legislative basis. Therefore the Report is so voluminous. The most important proposals are reproduced in section 7 below, and proposals already implemented in section 8. The concluding part comprises chapters on a follow-up on the Commission proposals (chapter XIX), a survey of proposed councils and committees (chapter XX), the financial consequences of the Commission proposals (chapter XXI) and the question of transfer to the Home Rule Government (chapter XXII). The bills with explanatory notes drafted by the Commission (chapters XXIII to XXV) as well as lists of literature and appendices (chapter XXVI) have been included at the end of the Report. Both draft bills (with explanatory notes) are very comprehensive according to the proposal. The Commission found it essential and especially more user-friendly that, to the extent possible, any doubt experienced by the judicial authorities in the exercise of their functions is included in the actual Administration of Justice Act and Penal Code. The Administration of Justice Bill thus includes new parts on police investigation (including coercive measures in detail), institution of criminal proceedings, the defence, court proceedings and appeal as well as court fees. The Penal Bill includes new parts on the organisation of the Prison and Probation Service and on sentence enforcement. Moreover, both legislative acts are subject to elaborate, joint revision. The Report is accompanied by a volume of appendices and this summary volume. 6. General background information 6.1. The Commission has prepared a detailed historical description of the origin and development of Greenland s judicial system (chapter II of the Report, Judicial system in general). The subjects discussed are the following:

15 13 The social conditions in Greenland since 1950 and the position of the judicial system (section 1); the Administration of Justice Act for Greenland genesis and development until appointment of the Commission (section 2); the Penal Code for Greenland genesis and development until appointment of the Commission (section 3); and a general description of the judicial system in 1994 at the appointment of the Commission (section 4) Activities to engender debates and provide information. The Commission sought to involve the Greenlandic community, not least the population, in debates on issues concerning the judicial system (chapter III, section 2, of the Report). This was accomplished by involving local leisure time boards; holding public meetings in connection with Commission or working group meetings; visiting various relevant institutions; publishing informative newspapers designed to engender debates; and participating in radio and television debates, and engendering such debates itself, to the extent possible Research reports. To provide more knowledge about various aspects of the judicial system in Greenland and the population s views of it, the Commission launched some scientific studies via its research group (chapter III, sections 3 to 5, of the Report). The studies are mentioned at the relevant places in the Report and this summary. The following studies have been published: At the District Court [I kredsretten] Population and Police [Befolkningen og politiet] Police Working Conditions [Politiets arbejdsvilkår] Prison, Supervision, Halfway House [Anstalt, Tilsyn, Pension] Recidivists [Flergangskriminelle] Study of Recidivism [Recidivundersøgelse] Crime in Greenland extent, causes and potential action [Kriminaliteten i Grønland omfang, årsager og handlemuligheder] 6.4. Certain multi-field problems have been presented as doors to understanding the conditions under which the judicial system in Greenland works (chapter IV of the Report). The problems have been thoroughly discussed at the relevant places in the Report and this summary. They are: General problems Language (cf. just below) Settlements Transfer to Home Rule Human rights Significance of Danish law

16 14 Particular problems concerning legal proceedings Lay persons/law professionals Personal non-involvement Legal aid Customary law Particular problems concerning crime Crime prevention Crime victims Offender principle Conflict resolution methods 6.5. Language. The Commission has had to pay particular attention to language in the judicial system (chapter V of the Report). Great difficulties are involved when most of the players in the judicial system district courts, police and the Prison and Probation Service speak Greenlandic and some Danish, while another essential group of players in the judicial system the Chief Constable and his lawyers, the High Court judge and his lawyers, appeal instances and other authorities in Denmark speak Danish. This has resulted in a number of time- and resource-consuming language reforms which have already been accomplished and will be accomplished in future by virtue of the Commission proposals. They are: Transcripts of judgments and indictments must be prepared also in Greenlandic where necessary. More legal documents must be translated into Greenlandic where necessary. Statements in court must be entered in the court record in the language spoken. Efforts are being made to make it possible in future to prepare all legal documents and make all statements in Greenlandic where necessary. All judicial authorities must give substantial emphasis to bilingual skills at new appointments and courses in written Greenlandic. Lists of legal concepts, etc., must be prepared and maintained in Greenlandic. Central translating and interpreting services must be established to serve the courts as well as the rest of the judicial system and the High Commissioner s Office [Rigsombudet].

17 15 7. Major Commission proposals The Commission proposes the following court system: Supreme Court [Højesteret] Third instance upon leave from the Board of Appeal [Procesbevillingsnævnet] High Court of Greenland appeal instance in all cases Local district courts First instance Court of Greenland trained district judges professional judge equal standing entire Greenland Retention of the present division into judicial districts. Establishment of training scheme for authorised district judges. Permanent employment of district judges. Determination of number and location of district judges on the basis of case load, nature of district and traffic conditions. A lawyer-based court of first instance, the Court of Greenland [Retten i Grønland], to deal with legally complex cases and to handle training of and guidance to district judges. The High Court of Greenland solely to hear appeal cases in future (second-instance cases). In cases determined at first instance by the professional court, the High Court must be staffed by two Danish High Court judges assigned in advance by the Presidents of the High Courts of Eastern and Western Denmark [Østre og Vestre Landsret], respectively. A Council of Judges [Dommerråd] to consider cases of dismissal of district judges and to assist in the appointment of district judges. Defence Strengthening of the defence by specifying the role of defence counsel and extending it to include the time also prior to institution of criminal proceedings. Establishment of training scheme for the current lay counsel as authorised counsel. Access for authorised counsel and other counsel to telephone guidance from an attorney via the hotline already established. Possibility of assigning an attorney as an out-of-court advisor to the lay counsel appearing before the district court in aggravated cases. Possibility of assigning attorneys to be defence counsel and to appear before the district court in certain very aggravated cases. Establishment of a position as either public or private national defence counsel to safeguard an adequate defence, including to be in charge of training of and guidance to defence counsel and to supervise their activities. Offences and administration of criminal justice Revision of the Penal Code provisions on offences.

18 16 Thorough reform of rules on coercive criminal justice measures. Administration of justice in general Introduction of court fees (for civil and enforcement proceedings) as well as rules on exemption from court fees and service of legal notices. Statutory rules on attorneys activities. Setting up of a nationwide legal aid scheme, to the extent possible manned by attorneys. If at all possible, parties to be present at court proceedings for immediate production of evidence, possibly by means of video conferencing equipment. Professionalisation of civil proceedings. More cases to be determined on the basis of a trial than at present. Crime and crime victims Establishment of a statutory crime prevention council to strengthen and co-ordinate crime prevention efforts. Special efforts in favour of victims, including the establishment of a national network of victim assistance centres, coordinated by the Department of Social Services [Socialdirektoratet]. Obligation for the police and the court to inform, counsel and assist victims, including to offer the victim a support person during questioning, to ensure the equal treatment of the compensation proceedings and the criminal proceedings and in certain cases to assign a victim advocate to the victim. System of sanctions A system of sanctions built on elements from both the offence and the offender principles. Treatment and control must be of equal importance. Introduction of the following sanctions, ranked according to severity on a sanction ladder: Caution (new sanction) Fine Suspended sentence with fixed sanction period (new sanction) Sentence of supervision Community service sentence (new sanction) Prison and supervision sentence (new sanction) Prison sentence Safe custody sentence (indeterminate placement) When choosing the sanction on the sanction ladder, the judge must take into consideration the gravity of the offence, etc. Each rung of the ladder must provide offers of treatment. Introduction of special sanctions for young and mentally ill criminals.

19 17 Graphic model of the sanction ladder: Safe custody Prison Supervision Community service Prison and supervision Fine Suspended prison Caution Prison and Probation Service Establishment of a unified management of the Prison and Probation Service covering prisons as well as local probation offices, supervision and after-care. The proposed enforcement authority organisation looks as follows: Management of the Prison and Probation Service Prisons Probation Offices Halfway Houses Establishment of central and local cooperating bodies for co-ordinating and rationalising the aggregate efforts against crime, including the Prison and Probation Service, the other judicial authorities and social, health and labour market authorities. Presence and rationalisation of the supervision function of the Prison and Probation Service in all municipalities. Prompt reaction to breach of conditions by the use of arrest, detention and other measures. Prison system with open units as so far. However, all prisons must provide a semi-closed regime for offenders who have committed serious offences against the person. Construction of an open prison at Tasiilaq. Establishment of a closed disciplinary unit in Nuuk Prison for offenders who do not observe the conditions for placement in open units or under a semi-closed regime. Establishment of a closed safe custody unit in Nuuk Prison for dangerous offenders so far placed in Herstedvester Prison.

20 18 The Commission proposes a prison system with 84 places divided between the individual prisons as follows: Nuuk 54 places Qaqortoq 10 places Aasiaat 10 places Tasiilaq 10 places open unit open unit open unit open unit semi-closed regime semi-closed regime semi-closed regime semi-closed regime closed disciplinary unit closed safe custody unit Comment: Concerning capacity development in 2002, see chapter XVI, part 1.8. Establishment of various treatment options during incarceration/supervision (against abuse of alcohol and drugs, sexological and corrective behavioural treatment, training, etc.), which implies appointment of new professional groups (psychologists, psychiatrists, social education and welfare workers, etc.). Police Establishment of a new police district in Kangaatsiaq. Establishment of a police complaints board. Increase of the police force from 115 to 125 persons. Follow-up on Commission proposals Statutory establishment of a Council for Greenland s Judicial System [Råd for Grønlands Retsvæsen] for follow-up on the reforms of the Administration of Justice Act and the Penal Code.

21 19 Transfer to Home Rule Description of the consequences, including advantages and disadvantages of full or partial transfer of the judicial system to Greenland. 8. Some implemented proposals The following describes major proposals implemented or launched at the time of reporting. On language Essential legal documents are prepared in both Greenlandic and Danish unless it is known positively that the citizen is fully bilingual. Transcripts of judgments are also prepared in Greenlandic, if necessary. Experiments with entering statements, etc., in the record in the language spoken. The Commission and the Greenlandic Language Council [Det grønlandske Sprognævn] have cooperated on the publication of a Greenlandic Glossary of the Penal Code, the Administration of Justice Act, etc. [Terminologiliste over kriminallov, retsplejelov m.m.], which lists various legal concepts. The legal glossary must be updated regularly. Two trained translators and interpreters have been employed by the Chief Constable and placed at the High Commissioner s Office as the first staff of a central translating and interpreting service. On courts and the administration of justice The guidance division of the High Court has been strengthened and separated from the appeals division. Training for district judges and lay counsel has been initiated. Lay counsel can get telephone guidance from a law firm in Nuuk via the hotline. Lay counsel can get more comprehensive guidance from an attorney in aggravated criminal proceedings. Experiments with training of district judges. Experiments with training of lay counsel. Experiments with the use of video conferencing equipment. On the sanction system and the Prison and Probation Service Statutory authority for transfer/stationing of Greenlanders sentenced to safe custody at the Herstedvester Prison to a prison in Greenland with a view to release in Greenland later. New rules for guardians assigned to offenders who have been sentenced to an indeterminate sanction. Study of the possibility of introducing a community service sentence as a new sanction. Experiment with organised efforts for victims (victim assistance centres). Partial extension of the supervision activities of the Prison and Probation Service. Improved training of prison officers.

22 20 On the police Training of local bailiffs and auxiliary police officers. A statute on the hearing of complaints and criminal proceedings concerning police staff in Greenland (police complaints boards). Follow-up A chair in Greenlandic sociology of law has been created and filled at the University of Copenhagen, Faculty of Law [Københavns Universitet, Det juridiske Fakultet]. It is affiliated with the University of Greenland [Grønlands Universitet] in Nuuk.

23 21 ADMINISTRATION OF JUSTICE (Chapters VI to XI of the Report) Chapter VI Organisation and staff of the judiciary 1. Introduction One characteristic of the administration of justice system in Greenland is that the courts of first instance, the district courts, are purely lay courts. This system was introduced with the adoption of the 1951 Administration of Justice Act, and then, as now, most proceedings fall with the jurisdiction of the district courts. District court decisions are made by the local district judge as the presiding judge and two local lay judges, none of whom has any legal or other specialist training. One of the absolutely central questions to the Commission in the choice of a future system of administration of justice was whether the judges of the courts of first instance were to remain non-lawyers, or whether all judgeships should be filled with lawyers. This chapter describes these deliberations, which have resulted in the Commission s recommendation to maintain that district judges need not be lawyers. 2. Retrospective look A retrospective look shows that these deliberations are not new. The current Administration of Justice Act has been amended regularly, but the fundamental wish for court decisions to be made by lay judges has always been maintained. Act No. 271 of 14 June 1951 on the Administration of Justice in Greenland entered into force on 1 December 1951 and has thus applied for about half a century. The reason why Greenland got its own Administration of Justice Act was the wish to have a system suitable for an extremely large geographical area with a small and very dispersed population. Another wish was to place all citizens, Danes and Greenlanders, on an equal footing and enable everybody to understand both the language and contents of the legal proceedings. Therefore a district court was set up in all municipalities, where decisions were to be made by persons of the local community, that is, by laymen. As is evident, the current administration of justice system is characterised by a principle of proximity. Citizens are served locally, and district judges are recruited among the locals. They therefore belong to the local community and know the language, the culture and the population of the district. This ensures what is called the Greenlandic element of the administration of justice. This is of great importance due to the differences of language, society and culture that apply, not only between Denmark and Greenland, but also between the different regions of Greenland.

24 22 As part of the court system in Greenland, the High Court of Greenland, which is a court chaired by lawyers, was established at the same time as the district court system. This was to ensure a professional review of district court decisions on appeal. It was also decided, as a safety net under the lay judge system, that the High Court was to act as the first instance in certain cases and take over particularly complex cases from the district courts. The head of the High Court, the High Court judge, was also charged with providing legal support to the district courts in the form of guidance and assistance in questions concerning the exercise of their judicial powers. This obligation imposed on the High Court judge by the Administration of Justice Act to provide guidance to the district courts has been extensively exploited by the district judges. Originally the guidance was intended to be of a general nature. Over the years, however, a firm practice evolved where district courts procured guidance for use in individual cases. So far there has been no formal procedure for the guidance or the training of newly appointed district judges or clerks. They have typically received a brief introduction to the work from the rest of the staff, whereupon they have had to seek knowledge through practical experience and general guidance. Throughout all the years, both district judges and clerks have expressed a desire for further training and guidance. In 1995, at the Commission s initiative, the High Court was divided into a trial division and a guidance division. The purpose of this division was partly to counteract the potential concern arising when appeals are heard by the same instance as is in charge of guidance, partly to strengthen the guidance and training of district court officials. Altogether, a large number of initiatives have been launched to strengthen the professional skills of both district judges and clerks, such as more frequent visits, courses and written guidance. As a special initiative, a pilot scheme on the training of district judges has been completed. 3. Current administration of justice system In addition to the district courts, Greenland s current administration of justice system comprises the appeal instances: the High Court of Greenland and the Danish courts, the High Court of Eastern Denmark and the Supreme Court. As mentioned above, the majority of all proceedings are heard by the district courts at first instance. This applies to both civil and criminal proceedings. However, according to legislation, certain proceedings fall within the jurisdiction of the High Court of Greenland as the court of first instance. Moreover, the Greenland Parliament [Landstinget] may lay down rules in fields falling within Home Rule. In addition, the High Court judge may allow the High Court of Greenland to take over a case for first-instance hearing if legal or other special insight is deemed to be of importance in the determination of the case.

25 23 A case determined by the district court can be appealed to the High Court of Greenland without restrictions. A case determined by the High Court of Greenland at first instance can be appealed to the High Court of Eastern Denmark without restrictions. The Supreme Court acts as the third instance for decisions made by the High Court of Greenland at second instance, and for decisions made by the High Court of Eastern Denmark. Appeal to the Supreme Court is subject to leave from the Board of Appeal in Denmark. The district courts each cover a judicial district defined by the municipal boundaries. Each judicial district has a town where the district court customarily sits and one or more settlements where the district court sits when on its regular circuit. Each district court has a district judge. Nuuk, however, has two district judges, and the district judges of Aasiaat [Egedesminde] and Paamiut [Frederikshåb] are also district judges of Kangaatsiaq and Ivittuut, respectively. The 18 judicial districts are staffed by a total of 17 district judges. All district court proceedings are heard by the district judge as the presiding judge sitting with two lay judges. The district judges are appointed by the High Court judge of the High Court of Greenland for four years at a time and can be reappointed. Lay judges are elected by the local council upon recommendation by the High Court judge. Such elections are also valid for four years at a time with a possibility of re-election. The office of district judge or lay judge is a civic duty and therefore involves no employment as such with the judiciary service. Consequently, district judges and lay judges typically have their main occupations elsewhere and primarily come to the district court in connection with scheduled hearings. No particular educational qualifications are required, only that they must be of unblemished reputation and satisfy the conditions for eligibility for the local council, and they should also normally be appointed among the population of the place where the court sits. Each district court employs one or more clerically trained court clerks whose permanent presence is a prerequisite for the proper functioning of the scheme with the district judge office as a civic duty. In practice the district court clerks have a very large field of responsibility and handle a large number of independent tasks. When the district court system was established, the case load was quite modest. It was therefore expected that the work as district judge could be carried out without problems as a civic duty beside another job, and partly in the judge s spare time. However, the work load and the demands made on the district courts have changed much over the years, resulting in an ever increasing need for secretarial assistance and a need for considering whether the office of district judge can still be carried out as a civic duty beside another job and partly in the judge s spare time.

26 24 The case load of the district courts of Greenland varies considerably, but is significantly lower anyway than that experienced in Denmark. This is a natural consequence of the small population in Greenland as well as the division of the country into 18 judicial districts. Decisive factors for the workload of the individual district courts are not only the number and types of cases, but also the number of settlements comprised by the judicial district, including their location and the traffic conditions that apply to circuits to the settlements. These and other special conditions make it impossible to assess the staffing need, etc., at the courts of Greenland on the basis of case statistics alone, nor is it possible to make a direct comparison with conditions at Danish courts. However, the limited case load implies that several of the present district courts cannot provide full-time employment for a district judge. Like the High Court of Eastern Denmark and the Supreme Court, the High Court of Greenland covers the entire country. The High Court of Greenland has its permanent seat in Nuuk, but may sit everywhere in the country in connection with its circuits. The High Court of Eastern Denmark and the Supreme Court sit in Copenhagen, although the High Court of Eastern Denmark sits in Nuuk once a year. The High Court of Greenland is presided over by a High Court judge who must be a lawyer and who is appointed by the monarch. The High Court also employs several lawyers who can exercise the functions of the High Court judge in his place. High Court cases are heard by the High Court judge or another lawyer as the presiding judge, sitting with two lay judges. The lay judges of the High Court are elected by the Greenland Parliament upon recommendation by the High Court judge and on the same terms as lay judges at the district courts. Greenland s judicial system and its pertaining legislation is one of the fields that cannot pass to Greenland under the current Home Rule scheme. The work of preparing legislation lies with the Ministry of Justice, and the power to pass legislation still lies with the Danish Parliament. The administration is handled by the Danish Court Administration [Domstolsstyrelsen]. 4. Assessment by the Commission of the current system Both before and in connection with the work of the Commission, the professional level of the district courts, particularly the lay district judges, has been criticised by several parties. The district judges themselves have also repeatedly expressed a desire for further guidance and training. This criticism must be seen in the light of the rapid development which the Greenlandic society has undergone and still undergoes, resulting in comprehensive and increasingly complex legislation. A consequence of this development is that the district courts face ever more complex problems making increased demands on the judges professional insight and knowledge.

27 25 In the light of this criticism, among other things, the Commission launched a study of the users perception and understanding of the district courts and their activities. The report At the District Court by Helene Brochmann shows that the population is in fine harmony with the district courts. The parties attitude to the district courts is positive and marked by respect. Cases are being heard and decided in a way that is understandable to the parties. However, the report also suggests several improvements of, for instance, the information to citizens brought before the district court. Moreover, it has been difficult to find and retain suitable persons as district judges. One of the problems has been that the persons considered suitable did not want to undertake the task. There are many causes of the large turnover among district judges. It has been emphasised that it was difficult both to discharge the task and to hold down another job. The work has been felt as entailing too heavy responsibilities, it has been poorly paid, and the requisite support and training have not been given before appointment. Similar recruiting and retaining problems have applied to district court clerks. Recruitment of lawyers for the High Court of Greenland has also been difficult. With a single exception, all lawyers at the High Court of Greenland so far have been Danes. It has been almost impossible to recruit among the few Greenlandic lawyers. Subsequently, Greenlandic lawyers have been trained, but their number is still limited, and there are no signs of more within the next few years, particularly not lawyers who are also fluent in Greenlandic. However, to the deliberations whether judges of courts of first instance should be lay people or lawyers in future also comes the formal question whether a court within the meaning of the Danish Constitution or the European Convention on Human Rights may consist solely of laymen. To answer this question, the Commission has procured opinions from the Danish Ministry of Justice and the Danish Centre for Human Rights, and based on these opinions the Commission finds that neither the Constitution nor the European Convention on Human Rights is a bar to a system of lay district judges. 5. Commission proposals The Commission has worked out and assessed several models of designing the future system. The good experience with the district judge system is directly connected to the proximity principle that has so far characterised Greenland s judicial system in the form of the local presence of the courts and their special insight into local and general conditions in Greenland, not least the Greenlandic language. A system with lawyers as district judges will make it impossible to keep the natural advantages mentioned above. This is due not least to the language problems. The advantages of a lawyer-based system thus consist first and foremost in the achievement of the professional expertise implied by a university law degree.