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Supreme Court of Denmark

Civil imprisonment to secure the possibility of expelling two EU citizens was lawful 

Case no. 143/2009
Judgment 31 March 2011

A and B
The National Commissioner

Civil imprisonment to secure the possibility of expelling two EU citizens was lawful

A and B were Romanian citizens who entered the Schengen area (Norway) on 22 October 2008. On 24 October 2008, they were arrested in a clothes shop in Denmark and charged with theft of a fur coat worth DKK 4,800, while one of them was also charged with assault under s. 244 of the Danish Penal Code for having bit a shop assistant in the shoulder. Both had previously been convicted for theft in Denmark. In connection with the referral of the case to the Danish Immigration Service for consideration of expulsion, A and B were imprisoned. On 25 October 2008, the Danish Immigration Service decided to expel A and B. The decision was upheld by the Ministry of Integration Affairs on 30 October 2008. The issue of imprisonment was referred to the District Court, which released A and B. The finding of the District Court was appealed to the High Court, which held that the imprisonment of A and B was lawful.

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. Based on the information that A and B had admitted to the offence, which had been committed shortly after entry into Denmark, and that they had no ties with Denmark, the Supreme Court held that the conditions for expulsion as stipulated in s. 25a, cf. s. 26, of the Aliens (Consolidation) Act, must be regarded as having been fulfilled on the evidence. In addition, A’s and B’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 they had no ties with Denmark, expulsion was not disproportional, cf. Article 27 of the Directive read with Article 28. Consequently, the Directive did not preclude expulsion. The Supreme Court agreed that imprisonment of A and B was necessary to secure the possibility of expulsion, as less intrusive measures were not sufficient based on the information on A and B.

The High Court had reached the same conclusion. 

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