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Supreme Court of Denmark

Press release 2. July 2008 

Case no. 157/2008
ECHR article 5(4)
U2008.2394H
 

Today, the Supreme Court delivered its verdicts in the cases where to Tunisian men were detained because of the Minister of Refugee, Immigration and Integration Affairs' decision to expel them on the grounds that they were regarded as dangers to national security.

The Supreme Court concluded that the District Court's and the High Court's review of the detention of the two men did not live up to the requirements for judicial reviews. For this reason, the Supreme Court rescinded the District Court's and the High Court's detention orders and remitted the cases to the District Court for the required judicial review. The decisions of the Supreme Court do not imply that the two men will be released.

The Supreme Court requires that when reviewing the detention orders, the District Court must review the factual basis of the decision to regard the aliens as dangers to national security. The Supreme Court further requires that it is proven on a balance of probabilities that such factual basis for the assessment of danger exists that the detention cannot be regarded as being unauthorised or unfounded. To do this, the authorities must produce the required information in court and the adversarial nature of proceedings must be observed.

The Supreme Court has not reviewed the lawfulness of the Minister of Integration's decisions to regard the two Tunisian men as being dangers to national security and expel them, as this is not possible in a case dealing with deprivation of liberty.

Nine judges heard the two cases before the Supreme Court. The verdicts were unanimous.

The Supreme Court's decisions in the two cases were reasoned as follows:

In the case regarding A:

"Legal basis

Pursuant to S. 25(1) of the Danish Aliens (Consolidation) Act, an alien may be expelled if the alien must be deemed a danger to national security. The expulsion decision is made by the Danish Immigration Service with the Ministry of Integration as the appeals body.

In accordance with S. 45b(1) of the Aliens Act, the Minister of Integration assesses on the basis of a recommendation from the Minster of Justice whether the alien must be deemed a danger to national security, and this assessment forms the basis of the determination of the case by the Danish Immigration Service. In addition, pursuant to S. 45b(2), the Minister of Integration may decide, on the basis of a recommendation from the Minister of Justice, that the information resulting in the assessment that the alien must be regarded as a danger to national security may not, for security reasons, be transmitted to the alien and the Danish Immigration Service.

If necessary to ensure that the expulsion of an alien under S. 25 of the Aliens Act may be enforced, the police may order that the alien is to be deprived of liberty, cf. S. 36(1).

An alien who has been deprived of liberty must be brought before a court of justice within three full days, and the court shall rule on the lawfulness of the deprivation of liberty and its continuance, cf. S. 37(1). Such case does not suspend the enforcement of the expulsion, cf. S. 37(5), and the lawfulness of the decision made under S. 45b(1) on danger assessment or the decision made under S. 25 on expulsion cannot be considered. The Aliens Act does not contain any provisions on judicial review of these decisions, but they may be referred to the courts in a lawsuit against the Ministry of Integration, cf. S. 63 of the Constitutional Act of Denmark.

As mentioned above, it is the lawfulness and continuance of the deprivation of liberty that will be made subject to a judicial review pursuant to S. 37 of the Aliens Act. This provision is based on the position that persons who are deprived of their liberty under the Aliens Act should not, in a judicial review, be afforded less protection than the persons detained under other administrative rules, and it implies the same judicial review as the judicial review foreseen in S. 71(6) of the Constitutional Act, cf. report no. 968/1982 on the Aliens Act, page 61 ff. S. 37 contains provisions on this judicial review, and in accordance with S. 37(6), Part 43a of the Administration of Justice Act on the review of deprivation of liberty ordered by an administrative authority "applies correspondingly", which means, among other provisions, S. 471 of the Administration of Justice Act, according to which the court shall be responsible for the evidence in the case.

Although the decision on deprivation of liberty was made to ensure enforcement of the expulsion decision, which was, in turn, based on the decision that the alien must be deemed a danger to national security, and although the lawfulness of these decisions cannot be reviewed in a case dealing with deprivation of liberty, cf. S. 37, the Supreme Court finds that a review of the lawfulness of the deprivation of liberty must include a certain review of the factual basis of the decision to regard the alien as a danger to national security. The Supreme Court requires that it is proven on a balance of probabilities that such factual basis for the assessment of danger exists that the detention cannot be regarded as being unauthorised or unfounded, cf. also Article 5(4) of the Human Rights Convention. To do this, the authorities must produce the required information in court and the adversarial nature of proceedings must be observed.

The present case

The decision to expel A was made under S. 25(1) of the Aliens Act on the basis of the Minister of Integration's assessment that A must be deemed a danger to national security. With the Danish Immigration Service's decision, A also received a copy of the Ministry of Integration's letter of 6 February 2008 to the Danish Immigration Service, according to which the assessment was made on a suspicion that A had participated in the planning of the assassination of a person who drew one of the Mohammed cartoons in the newspaper Jyllands-Posten's article "The face of Mohammed" which featured in the newspaper on 30 September 2005.

The Mohammed cartoons and the debate that followed provoked reactions worldwide, including attacks on Danish state institutions. The Supreme Court considers that killing a person for having drawn one of these cartoons must be regarded as an attempt to scare the Danish population, restrict the freedom of speech and hamper the public debate.  Against this background, a person planning such an assassination may rightly be deemed a danger to national security, cf. S. 25(1) and S. 45b(1) of the Aliens Act. Consequently, A's allegation that a person suspected of such an act cannot be deemed a danger to national security cannot be upheld.

Pursuant to S. 45b(2) of the Aliens Act, the Minister of Integration had ordered that the information on which the danger assessment was based could not be transmitted to him or the immigration authorities that were to consider his case. Consequently, when he was detained, the only information A received regarding the basis of the expulsion decision was that the Minister of Integration deemed him a danger to national security because he was suspected of having participated in the planning of the assassination of one of the cartoonists. On 14 February 2008, he was brought before the District Court of Copenhagen for a review of the lawfulness of the deprivation of liberty and continuance thereof. In their statement, the police did not elaborate on the basis for the decision. On the basis of the available information, the District Court found that the deprivation of liberty was lawful and extended it for four weeks. A appealed against the District Court's order, and in the notice of appeal of 21 February 2008, he called on the police to produce sufficient material to enable a review of the assessment of danger in order for a reasoned decision to be made. The police did not respond to this, and on 27 February 2008, the High Court of Eastern Denmark dismissed the appeal on the basis of written evidence without considering other evidence and without making a reasoned assessment of the objections raised, which objections correspond to those submitted to the Supreme Court. After the case in May 2008 had been set down for trial in the Supreme Court for 20 June 2008, the National Commissioner produced a letter of 4 June 2008 from the Danish Security and Intelligence Service containing information on a part of the basis for the expulsion decision with exhibits of approx. 100 pages, including reports on Internet tapping. secret searches and phone tapping.

The Supreme Court finds that the District Court's and the High Court's reviews of the deprivation of liberty have not fulfilled the requirements for judicial review pursuant to S. 37 of the Aliens Act, as described above.

The fact that the judicial reviews were inadequate cannot justify A being released, but the orders will be rescinded and the case remitted to the District Court for the required judicial review.

Against this background and since the other evidence provided by A cannot lead to another conclusion, the Supreme Court upholds his second alternative claim.

It is ordered that:

The District Court's and the High Court's orders are rescinded, and the case is remitted to the District Court for a judicial review."

In the case regarding B:

"Legal basis

Pursuant to S. 25(1) of the Danish Aliens (Consolidation) Act, an alien may be expelled if the alien must be deemed a danger to national security. The expulsion decision is made by the Danish Immigration Service with the Ministry of Integration as the appeals body.

In accordance with S. 45b(1) of the Aliens Act, the Minister of Integration assesses on the basis of a recommendation from the Minster of Justice whether the alien must be deemed a danger to national security, and this assessment forms the basis of the determination of the case by the Danish Immigration Service. In addition, pursuant to S. 45b(2), the Minister of Integration may decide, on the basis of a recommendation from the Minister of Justice, that the information resulting in the assessment that the alien must be regarded as a danger to national security may not, for security reasons, be transmitted to the alien and the Danish Immigration Service.

If necessary to ensure that the expulsion of an alien under S. 25 of the Aliens Act may be enforced, the police may order that the alien is to be deprived of liberty, cf. S. 36(1).

An alien who has been deprived of liberty must be brought before a court of justice within three full days, and the court shall rule on the lawfulness of the deprivation of liberty and its continuance, cf. S. 37(1). Such case does not suspend the enforcement of the expulsion, cf. S. 37(5), and the lawfulness of the decision made under S. 45b(1) on danger assessment or the decision made under S. 25 on expulsion cannot be considered. The Aliens Act does not contain any provisions on judicial review of these decisions, but they may be referred to the courts in a lawsuit against the Ministry of Integration, cf. S. 63 of the Constitutional Act of Denmark.

As mentioned above, it is the lawfulness and continuance of the deprivation of liberty that will be made subject to a judicial review pursuant to S. 37 of the Aliens Act. This provision is based on the position that persons who are deprived of their liberty under the Aliens Act should not, in a judicial review, be afforded less protection than the persons detained under other administrative rules, and it implies the same judicial review as the judicial review foreseen in S. 71(6) of the Constitutional Act, cf. report no. 968/1982 on the Aliens Act, page 61 ff. S. 37 contains provisions on this judicial review, and in accordance with S. 37(6), Part 43a of the Administration of Justice Act on the review of deprivation of liberty ordered by an administrative authority "applies correspondingly", which means, among other provisions, S. 471 of the Administration of Justice Act, according to which the court shall be responsible for the evidence in the case.

Although the decision on deprivation of liberty was made to ensure enforcement of the expulsion decision, which was, in turn, based on the decision that the alien must be deemed a danger to national security, and although the lawfulness of these decisions cannot be reviewed in a case dealing with deprivation of liberty, cf. S. 37, the Supreme Court finds that a review of the lawfulness of the deprivation of liberty must include a certain review of the factual basis of the decision to regard the alien as a danger to national security. The Supreme Court requires that it is proven on a balance of probabilities that such factual basis for the assessment of danger exists that the detention cannot be regarded as being unauthorised or unfounded, cf. also Article 5(4) of the Human Rights Convention. To do this, the authorities must produce the required information in court and the adversarial nature of proceedings must be observed.

The present case

The decision to expel B was made under S. 25(1) of the Aliens Act on the basis of the Minister of Integration's assessment that B must be deemed a danger to national security. With the Danish Immigration Service's decision, B also received a copy of the Ministry of Integration's letter of 6 February 2008 to the Danish Immigration Service, according to which the assessment was made on a suspicion that A had participated in the planning of the assassination of a person who drew one of the Mohammed cartoons in the newspaper Jyllands-Posten's article "The face of Mohammed" which featured in the newspaper on 30 September 2005.

The Mohammed cartoons and the debate that followed provoked reactions worldwide, including attacks on Danish state institutions. The Supreme Court considers that killing a person for having drawn one of these cartoons must be regarded as an attempt to scare the Danish population, restrict the freedom of speech and hamper the public debate.  Against this background, a person planning such an assassination may rightly be deemed a danger to national security, cf. S. 25(1) and S. 45b(1) of the Aliens Act. Consequently, B's allegation that a person suspected of such an act cannot be deemed a danger to national security cannot be upheld.

Pursuant to S. 45b(2) of the Aliens Act, the Minister of Integration had ordered that the information on which the danger assessment was based could not be transmitted to him or the immigration authorities that were to consider his case. Consequently, when he was detained, the only information B received regarding the basis of the expulsion decision was that the Minister of Integration deemed him a danger to national security because he was suspected of having participated in the planning of the assassination of one of the cartoonists. On 14 February 2008, he was brought before the District Court of Copenhagen for a review of the lawfulness of the deprivation of liberty and continuance thereof. In their statement, the police did not elaborate on the basis for the decision. On the basis of the available information, the District Court found that the deprivation of liberty was lawful and extended it for four weeks. B appealed against the District Court's order, and in the notice of appeal of 21 February 2008, he called on the police to produce sufficient material to enable a review of the assessment of danger in order for a reasoned decision to be made. The police did not respond to this, and on 27 February 2008, the High Court of Eastern Denmark dismissed the appeal on the basis of written evidence without considering other evidence and without making a reasoned assessment of the objections raised, which objections correspond to those submitted to the Supreme Court. After the case in May 2008 had been set down for trial in the Supreme Court for 20 June 2008, the National Commissioner produced a letter of 4 June 2008 from the Danish Security and Intelligence Service containing information on a part of the basis for the expulsion decision with exhibits of approx. 100 pages, including reports on Internet tapping. secret searches and phone tapping.

The Supreme Court finds that the District Court's and the High Court's reviews of the deprivation of liberty have not fulfilled the requirements for judicial review pursuant to S. 37 of the Aliens Act, as described above.

The fact that the judicial reviews were inadequate cannot justify B being released, but the orders will be rescinded and the case remitted to the District Court for the required judicial review.

Against this background and since the other evidence provided by B cannot lead to another conclusion, the Supreme Court upholds his second alternative claim.

It is ordered that:

The District Court's and the High Court's orders are rescinded, and the case is remitted to the District Court for a judicial review."

 

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