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Supreme Court of Denmark

Civil imprisonment of EU citizen to secure the possibility of expulsion was lawful 

Case no. 316/2010
Judgment 31 March 2011

The National Commissioner

Civil imprisonment of EU citizen to secure the possibility of expulsion was lawful

On 6 September 2010, A, a Polish citizen, was caught stealing from a supermarket. A accepted the charge of shoplifting of 17 packets of condoms and 14 packets of batteries at a value of approx. DKK 1,493. As A had no financial means, the case was settled with a warning. When the case was referred to the Danish Immigration Service for consideration of expulsion, A was imprisoned. On 7 September 2010, the Danish Immigration Service decided to expel A, and on 15 December 2010, the Danish Ministry of the Interior affirmed the decision. The case before the courts concerns the issue of the lawfulness of the imprisonment of A.

The Supreme Court noted that an alien who has not lawfully stayed in Denmark for more than the last six months may be expelled under s. 25a(1)(1) of the Danish Aliens (Consolidation) Act, if, among other things, the alien has been sentenced for theft or has admitted the violation to the police or was apprehended during or in direct connection with commission of the offence. However, aliens covered by the EU rules may only be expelled in so far as this is in compliance with these rules. In addition, the Supreme Court stated that although an imprisonment order is made to secure the possibility of expulsion, and although the lawfulness of the expulsion decision cannot be examined in a case concerning imprisonment, review of the lawfulness of the imprisonment order must involve some examination of the basis for the decision.  It must, thus, be proven on a balance of probabilities that the factual basis has been properly established based on the information at hand, and the Court must consider whether the conditions for expulsion on this basis must be regarded as having been fulfilled. On the evidence, the Supreme Court gave importance to the facts that A had been caught immediately after having committed the offence, and that A in 2010 had received two fine notices for theft and violation of the Danish Euphoriants Act, and that he had no ties with Denmark. Against this background, the Supreme Court held that the conditions in s. 25a, cf. s. 26, of the Danish Aliens (Consolidation) Act for expelling A on the evidence had to be regarded as having been fulfilled. In addition, A’s conduct was regarded as representing a genuine, present and sufficiently serious threat affecting fundamental interests of society, cf. Article 27 of Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, and since he had no ties with Denmark, expulsion was not disproportional, cf. Article 27 of the Directive read with Article 28. The Supreme Court agreed that imprisonment of A was necessary to secure the possibility of expulsion, as less intrusive measures were not sufficient based on the information on A.

 The High Court had reached the same conclusion.

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