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Supreme Court of Denmark

Arson. Access to cross-examination 

Case no. 67/2011
Judgment 17 May 2011
 

The Public Prosecutor
vs.
T

Arson. Access to cross-examination.
By judgments of the District Court and the High Court, T had been found guilty of arson pursuant to s. 181(1) of the Danish Penal Code for having set fire to a passenger car in a carport with his daughter, D. The fire later spread to the structure of the building.

D and T were arrested on 7 January 2010 and were brought before the court for a preliminary statutory hearing separately on 8 January 2010. Prior to the hearing, when questioned by the police, D explained that T had participated in the arson, while T denied this to the police. For the preliminary statutory hearing, A was appointed defence counsel for them both. Here, D again stated that T had participated in the arson. When later questioned by the police and during the hearings in the District Court and the High Court, where T and D were represented by two separate defence counsel, D explained that her original statement was incorrect, and that T had not participated in the arson.

The Supreme Court imposed an unconditional sentence of nine months' imprisonment on T.

Among other things, the Supreme Court noted that it would have been most correct to appoint a defence counsel for T different than the counsel appointed for D for the preliminary statutory hearing, cf. s. 734(2) of the Danish Administration of Justice Act. However, this was not deemed to have affected the outcome of the case, for which reason it could not lead to dismissal or rescission of the High Court's judgment, cf. s. 925(1) of the Administration of Justice Act.

Further, the Supreme Court stated that during the hearings in the District Court and the High Court, D had explained that her original statement was incorrect, and that T had not participated in the arson. The defence counsel who had now been appointed only for T had the opportunity to examine D, including asking her about the reason for her original statement. Against this background, Article 6(3)(d) of the European Human Rights Convention on access to cross-examination had not been violated.

The High Court had reached the same conclusion.

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