As the DN reported have kulturprofilen Jean-Claude Arnault, who has been sentenced to prison for two rapes, claims to have been ”grave procedural error” in the Svea court of appeal because the right ”has been disqualified to judge of the case”. After a decision in HD on Wednesday now, the court of appeal forthwith to leave an opinion in the matter.

the Background to the situation is that the Arnaults defense – after completion of the hearing in the court of appeal but before the judgment was announced – submitted new evidence in the case. The letter was received Friday, 30 november, and the judgment in the case fell on Monday, 3 december.

the Defense question the court of appeal took into account the new data in its assessment. You mean to the right – if you are already before the new evidence submitted in its deliberations ”have come further than probable cause” – should be considered as disqualified to judge in the case, and that the trial in such cases shall be taken.

Hessius believes that it is difficult to assess whether the suspicion of bias will be important. She questions at the same time, the defence behaviour.

” It seems remarkable that a letter with the new evidence received just days before the judgment. It brings to mind that perhaps it is a result you want to achieve, that it is considered as the only possibility to get up the case in HD, because there is no other foundation, ” says Ingela Hessius.

” I can only interpret it as a conscious action from the Arnaults side, having waited until the last minute to have a greater chance to assert that the court of appeal has not taken account of the letter. Hopefully we get now a clear opinion from the court of appeal where you explain if one is premeditated surrounding the new evidence, ” says Ingela Hessius.

procedural law and former judge, says that there are provisions for a court, on its own, decide to resume an already-completed hearing. One reason may just be that a party, in hindsight, relied on new evidence.

But no unconditional right to the evidence shall be deemed so significant that the trial should be resumed is not, ” says Roberth Nordh.

– the Court may make an assessment of whether the new evidence is of such a nature that it may affect the valuation of that which has already been taken up. Generally speaking, you should have a benevolent attitude, but new data may also be so peripheral that they are not considered to have any significance for the judgment. Then there is nothing that says that the proceedings shall start again, ” he says.

notice that the Supreme court grants leave to appeal on a question which bears some similarities with the situation in Kulturprofilen target. It is about a person who has been convicted of rape in both the county and the court of appeal, but that meant that the other instance has been biased in their assessment.

In the case appealed defence the court of appeal’s judgment to the court of justice would have been disqualified for taking a stand in the guilt by allowing the accused to remain in custody, and then allowed the same members to judge him new evidence submitted and granted.

however, there are significant differences between the cases.

” In that case, you have, after that new evidence had been received, decided that it had significance, and then continued with the same judges. Now HD decide the question whether they may have been considered to be biased in the situation. But to end up in the situation, one must first have decided that the new evidence should be granted, ” says Roberth Nordh.

Also Ingela Hessius points on the differences between the cases.

– There is a sort of tacit agreement in the larger courts that the judge in the trial should not be judged in häktningsförhandlingen. In smaller towns, it is often difficult. But this is an old debate that is about to be the judge as far as it is possible to be unaffected by the previous decision, ” says Ingela Hessius.

long experience as a judge in the court of appeal, mean that he would be surprised if HD comes to the conclusion that the court of appeal would have been biased in their assessment of the judgment against Jean-Claude Arnault.

” I would be very surprised if the court of appeal considered disqualified, and the trial must be repeated from the beginning. But after the court of appeal’s opinion will certainly HD, inter alia, with the background based on the practice of the european Convention to develop their decision more closely, ” says Robert Nordh.