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Supreme Court of Denmark

Not expelled following criminal conviction 

Case no. 169/2008
Judgment 29 December 2008
Directive 2004/38/EC, article 27 and 28

The Public Prosecutor

 An isolated assault on a bus driver did not lead to expulsion

The High Court sentenced the defendant to imprisonment for up to sixty days for the assault on a bus driver in February 2007. In addition, he was expelled and banned from entry for five years.

When the crime was committed, the defendant was 23 years old. He was born and raised in England by Pakistani parents. He came to Denmark in November 2005, had a five-year work and residence permit and had been working as a cleaner since his arrival in the country. His parents and his older brother also lived in Denmark.

The Supreme Court rescinded the expulsion decision. The Supreme Court gave importance to the fact that the assault, during which the defendant spat and hit the bus driver in the face, was committed as a spontaneous reaction when the bus driver would not let one of the defendant's friends bring a bottle of alcohol on the bus and then refused to drive on and closed the doors. In addition, the defendant was a first offender. After having weighed the defendant's ties with Denmark and resident persons on the one side and the nature of the assault committed on the other side, the Supreme Court found that there was a decisive argument against expulsion, cf. S. 26(2) of the Danish Aliens (Consolidation) Act. The Supreme Court noted that expulsion would also be in contravention of the principle of proportionality in the special EU rules governing EU citizens in Article 27(2), cf. Article 28(1), 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.

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