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Supreme Court of Denmark

Discovery of documents in and hearing in camera of a case concerning capture of an Afghan soldier 

Case no. 250/2010 and case no. 255/2010
Judgment 5. November 2010

The Ministry of Defence

Not sufficient basis for reversing order on hearing in camera of a case concerning liability in damages brought by an Afghan citizen against the Ministry of Defence

In 2007, and Afghan citizen, A, brought a case against the Ministry of Defence claiming that the Ministry is responsible for Danish soldiers handing him over to American forces in March 2002, after which time the American forces assaulted him in a prison camp in Kandahar.

Prior to the hearing, the press had featured articles about a Danish interpreter who was seconded to the American forces in Afghanistan in January and February 2002 and claimed to have witnessed offensive treatment of prisoners. After having investigated the case, the Military Prosecution Service prepared a confidential report in January 2005. A requested that the audit report and any other material concerning the interpreter in the Danish Defence's possession be produced in the High Court. In addition, he requested that the interpreter and several other people from the Danish Defence be examined in court. The Ministry of Defence made known that the report would be produced, provided that this could be done in camera, and also requested that the witnesses be examined in camera. In a ruling of 10 June 2010, the High Court decided that the case was to be heard in camera whenever the information in the audit report concerning the interpreter was produced, mentioned or quoted and during the examination of the interpreter and two private soldiers.

Before the Supreme Court, A submitted that the Ministry of Defence had not proven on a balance of probabilities that a hearing in camera was necessary considering the relationship between the Danish State and a foreign power or to avoid unnecessary offence against private individuals. In addition, A submitted that the High Court was not authorised to decide to hear the case in camera in advance, as such decision had to be made during the hearing in which the evidence was to be produced. The ruling of the High Court was also appealed against by representatives from the media who referred to the fact that the case was of great public and political importance and submitted that the evidence should not be produced in camera.

In line with the High Court, the Supreme Court did not consider that there was basis for setting aside the Danish Defence's assessment of the confidentiality of the audit report or the possibility of separating out information of a non-confidential nature. Consequently, the conditions for a hearing in camera were considered as having been met, both in respect of the production of the report and in connection with the examination of witnesses. Section 29c(2) of the Danish Administration of Justice Act did not provide basis for assuming that a decision on a hearing in camera could not be made before the trial proceedings.

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