• Svein-Thomas Isaksen Tvedt
4. term, Laws, Master (Master Programme)
“Charged, indefinitely” is chosen as a topic as a reference to the borderline between Danish criminal law and criminal procedure. Within both fields there exists regulations aiming to reduce the duration of criminal charges.

The inspiration for the topic was the Danish supreme court’s verdict, presented in UfR 2022.2508, where the case before the court was a criminal case in which a commercial driver, was charged with improper loading of live animals (pigs), where the case had suffered a 2 year and 2 months period of inactivity due to lack of registration of a request for an expert opinion submitted by the police.

From the criminal law perspective the defendant’s rights are protected through criminal charges becoming “time-barred” if a criminal prosecution stops indefinitely (“statute of limitation”), whereafter the criminal charges no longer can lead to a guilty verdict.

From a procedural perspective, the law requires that a criminal investigation concludes and an indictment is brought within reasonable time, with certain activity requirements at certain benchmark times from the prosecution and a right for the defendant to have the courts intervene in the procedure after a certain elapsed time.

The analysos will focus on the requirements laid down by the current Danish legislation, both in regard to both aspects of a criminal case, in regard to the prosecution, as well as the defendant and whether the current legislation should be applied in the context of one another, even though they constitute separate legislative areas.

To achieve this, a thorough analysis of available case law will be conducted, especially in regards to the criminal law (“statute of limitation”) aspect of a criminal case.

As both aspects of the Danish law undeniably have a close relation to the principles enshrined by the European convention on Human Rights. The national regulation will therefore be analyzed under the scrutiny of these principles and the case law from the European Court of Human Rights.(ECTHR)

Due to the similarities between the judicial and legislative traditions the Danish legislation and case law will furthermore be analyzed in a comparative scope, against Norwegian legislation and case law, with the aim of identifying similarities in the two jurisdictions.

After the analysis of the legislation and case law, in light of all the aspects uncovered, the analysis shifts to the perspective of a policy maker, to consider whether the goals of the legislation is being met through the existing case law and what, if any, change policy makers should implement in the legislation.

Ultimately the analysis will conclude that the current state of the legislation and case law is somewhat unclear, especially in regard to the criminal law, but through a more active use of aspects from both ECTHR and the comparative analysis, danish case law could be alot more transparent for a defendant in a criminal prosecution. Aswell as the existence of a connection, not previously written about in judicial theory, between the procedural rules and substantive law.
Publication date17 May 2023
Number of pages64


ID: 528873833