Impartiality of judge and compensation for pre-trial detention

Case no. 51/2020
Judgment delivered on 15 June 2021

The Prosecution Service
vs.
A, B, C, D, E, F and G

In 2016, the applicants were charged with attempting to track down and obtain possession of 310 kg of cocaine from a container at the Port of Frederica and export the cocaine from Denmark. On 22 December 2016, they were acquitted by the District Court of Kolding. Prior to the hearing, they had all been detained for a period of time, for which they were now claiming compensation.

The High Court subsequently dismissed the claims for compensation against the Prosecution Service. The issue to be considered by the Supreme Court was whether one of the High Court judges was impartial in this connection, which would lead to the judgment being set aside and the case being remitted for reconsideration by the High Court. If the Supreme Court should decide that the judge was not impartial, it was to consider whether there was basis for awarding compensation for the pre-trial detention.

At the time of the Public Prosecutor’s decisions to refuse the applications for compensation in these cases, the High Court judge in question had been appointed to the Public Prosecutor’s office. According to the information available, he did not take part in the consideration of these cases, as the cases came within the remit of a department in the Public Prosecutor’s office other than the one that he headed. The Supreme Court accordingly proceeded on the basis that the High Court judge in question did not have overall responsibility for the cases, including the authority to intervene in the hearing of the cases or otherwise to affect their outcome. Consequently, the Supreme Court agreed that the High Court judge was impartial in the case.

The Supreme Court also upheld the claim that the applicants had acted so suspiciously prior to their prosecution that they had to expect that there was a risk of, among other things, prolonged pre-trial detention. The Supreme Court thus agreed that the applicants were guilty of contributory negligence and therefore were not entitled to compensation.

The Supreme Court, thus, reached the same conclusion as the High Court.