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Supreme Court of Denmark

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

Case no. 319/2010
Judgment 31 March 2011

The National Commissioner

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

On 18 August 2010, A, a Romanian citizen, entered Denmark. On 20 August 2010, policemen on patrol duty found him by an abandoned building attempting to break open the lock of a bicycle with a screwdriver. He was arrested and charged with invasion of privacy for having gained access to the abandoned building and for theft by finding for having abstracted the bicycle. A accepted the charges and was given a warning. A was then imprisoned pending a decision by the Danish Immigration Service on expulsion. On 20 August 2010, the Danish Immigration Service decided to expel A from Denmark. On 31 August 2010, A was expelled to Romania. 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 by finding 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 accepted the charge of theft by finding, and that the bicycle he was trying to unlock was standing on a plot by an abandoned house with a lot of refuse and many other bicycles scattered on the ground. A had no accomplices, and the case had been settled with a warning. The offence was committed shortly after his entry into Denmark, and A had no ties with Denmark. A had no prior record in this country. Against this background, the Supreme Court held that the conditions in s. 25a(1)(1), cf. s. 26(1), of the Danish Aliens (Consolidation) Act for expelling A on the evidence had to be regarded as having been fulfilled. However, expulsion of A was in contravention of Directive 2004/28/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, as the offence – regardless of the fact that the offence had been committed shortly after entry into Denmark – was so random and had such limited adverse effect that A’s conduct could not be regarded as representing a genuine, present and sufficiently serious threat affecting fundamental interests of society, cf. Article 27 of the Directive. Consequently, imprisoning A was not lawful.

The Supreme Court thus reversed the ruling of the High Court.

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