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Supreme Court of Denmark

Employment of an alien without a work permit 

Case no. 110/2011
Judgment 24 October 2011

The Public Prosecutor

Employment of an alien without a work permit

By judgment of the High Court, T had been found guilty of breach of section 59(4), cf. subsection (5), of the Danish Aliens Act by having employed A, who did not have a work permit, in his company for 3-4 hours up to three times a week for a period of 29 months from July 2004 to December 2006. The company was a small restaurant with no other employees and with a profit of between approx. DKK 225,000 and 171,000 according to the financial statements for the years in question. The High Court considered the following to be aggravating circumstances: that A had no right of residence in Denmark, that T had acted intentionally, and that T obtained or attempted to obtain a financial advantage from employing A.

The case had been brought before the District Court on 25 May 2007, the District Court delivered its judgment on 28 June 2010, and the High Court delivered its judgment on 28 January 2011.

The Supreme Court imposed a penalty of DKK 200,000 (one judge issued a dissent in favour of a penalty of DKK 100,000).

The majority of the Supreme Court stated, among other things, that according to the legislative history behind the Aliens Act, in cases where several aggravating circumstances exist, a penalty exceeding DKK 20,000 per month must, as a general rule, be imposed.

Considering the limited number of weekly working hours, the consultative monthly penalty stated in the legislative history should be reduced, which is also in line with the Supreme Court judgment published in the Danish weekly law reports 2010, page 549. However, as there were several aggravating circumstances, including that the infringement had been intentional and that T thereby had attempted to obtain a financial advantage, a monthly penalty of less than DKK 15,000 could not be taken to apply.

However, as A had been employed for a long time for a limited amount of hours per month and in a small company with modest earnings, using DKK 15,000 as the basis for the monthly penalty to be imposed would lead to a disproportionately high penalty. Against this background, the penalty should, as a starting point, be fixed at DKK 250,000.

Considering the prolonged hearing of the case, the penalty was reduced by DKK 50,000, cf. section 82, no. 13, of the Danish Penal Code and article 6 of the European Human Rights Convention.

The High Court had reached a different conclusion (a penalty of DKK 290,000).


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