The Public Prosecutor
The Prosecution's cross-appeal was lodged within the period allowed for appeal despite the fact that the notice of appeal was only handed over to T 17 days after the expiry of such period
T was sentenced to imprisonment for six months by the District Court on 24 July 2009. Following the passing of the sentence, T lodged an appeal with a claim for dismissal, and the District Court ruled that he should be remanded in custody during the appeal proceedings. The period allowed for the Prosecution's appeal thus expired on 7 August 2009.
Pursuant to a notice of appeal of 4 August 2009, the Prosecution lodged a cross-appeal, and the notice of appeal was received by the High Court on 5 August. The notice of appeal of 4 August was submitted to T in Vestre Fængsel where he was imprisoned. On 20 August, the prison reported that it had not received the notice of appeal and that T had been moved to Køge Arrest on 17 August. A new notice of appeal was sent to T on 20 August and handed over to him on 24 August.
The High Court found that the cross-appeal from the Prosecution had been lodged too late and rejected it. Before the Supreme Court, the Prosecution claimed that the High Court's order should be quashed and remitted to the High Court for a new trial as the High Court had been wrong in rejecting the cross-appeal. T claimed affirmation of the order.
The Supreme Court based its decision on the fact that the notice of appeal had been sent as standard mail on 4 August 2009 to the High Court as well as to both Vestre Fængsel and the court-appointed defence counsel, among others. The Supreme Court stated that pursuant to S. 907(1)(3) of the Danish Administration of Justice Act, when the defendant is in custody, it is a condition for the punctual lodging of an appeal that the defendant is notified before the expiry of the period allowed for appeal by standard mail to the remand prison where he is imprisoned. However, there is no condition in the Act or its legislative history that the notice of appeal must be handed over to the defendant within a certain deadline. Against this background and as the result was not found to be in contravention of Article 6 of the European Human Rights Convention, the Supreme Court found that the Prosecution's appeal had been lodged within the period allowed for appeal.
The Supreme Court quashed the High Court's order and remitted the case for a new trial in the High Court.