Only parts of trial hearing to be held in camera

Case no. 95/2023
Order made on 27 October 2023

The Prosecution Service
vs.
T

T is charged with violation of Section 109(1) of the Danish Criminal Code for having on several occasions disclosed secrets of importance to national security and violation of Section 152(2), cf. Subsection (1), of the Criminal Code for having on several occasions disclosed confidential information under particularly aggravating circumstances.

The Prosecution Service requested that the District Court make a preliminary ruling that the trial hearing should be held in camera in its entirety for reasons of the Danish State’s relations to foreign powers. The District Court ruled that the trial hearing should be held in camera. The High Court upheld the District Court’s order.

Before the Supreme Court, the case concerned whether the conditions for a hearing in camera out of regard for the State’s relations to foreign powers were met.

The Supreme Court held that the criminal case against T is of considerable public interest, and that the requirements for the conditions to be met for the trial hearing to be held in camera must be seen in this light.

The criminal case concerns in particular the disclosure of information about a cooperation between the Danish Defence Intelligence Service (DDIS) and the US intelligence service NSA on interception of data traffic cables. The case also concerns information about DDIS’s investigation of whether NSA complied with the agreement with DDIS and about an employee of DDIS who made covert recordings of conversations between DDIS employees and contacted the Danish Intelligence Oversight Board (TET) as a whistleblower.

The Supreme Court found that the existence of the cable cooperation, the fact that DDIS has conducted an investigation regarding the cooperation with NSA, the security breach and the whistleblower’s contact to TET must at present be considered public knowledge. The Supreme Court found that the considerations behind the objective of avoiding confirming this information do not render a hearing in camera necessary when weighed against the considerations in favour of publicity.

At the same time, the Supreme Court found that there is information about, among other things, the cable cooperation which is not publicly known and that there may be information about possible adverse effects of T’s statements which is not publicly known. The Supreme Court found that there may be grounds for a hearing in camera during parts of the trial hearing if the considerations behind the wish to avoid publication or confirmation of such information outweigh the considerations in favour of publicity.

The Supreme Court found that the indictment against T may be read out in open court during the trial hearing, whereas the reading of the exhibits supporting the indictment, which contain the specific information that T is accused of disclosing in private conversations, must be read out in closed court.

The Supreme Court also found that parts of the evidence may be given in open court, but that there may be grounds for parts of the trial hearing to be held in camera to the extent that the evidence concerns more detailed information about the cable cooperation or the security breach or information about any harmful effects of T’s statements.

Accordingly, the Supreme Court amended the High Court’s ruling and ruled that the only parts of the trial hearing should be held in camera.