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Supreme Court of Denmark

Revocation of the decision of the Ministry of Integration Affairs that an alien was a danger to national security and on expulsion 

Case no. 17/2011
Judgment 24 June 2011
 

The Ministry of Refugees, Immigration and Integration Affairs
vs.
A

Revocation of the decision of the Ministry of Integration Affairs that an alien was a danger to national security and on expulsion

The Minister of Integration Affairs had decided that the alien had to be regarded as a danger to national security, on which basis the Ministry of Integration Affairs had then expelled the alien from Denmark with a permanent entry ban. The danger assessment of the alien was based on statements from the Danish Security and Intelligence Service, which accused the alien of having participated in the planning of the murder of the cartoonist Kurt Vestergaard who made one of the drawings in the newspaper Jyllands-Posten's article "The Face of Muhammed", which was published in the newspaper on 30 September 2005. The alien brought the Ministry's decisions before the courts, where the case was heard in accordance with the special rules in part 7b of the Danish Aliens Act on court proceedings in certain decisions on administrative expulsion of aliens deemed to be a danger to national security etc.

The Supreme Court noted that the provisions in part 7b of the Aliens Act allows the Court to hear the case partly behind closed doors, and during the hearing behind closed doors, confidential material which was included in the danger assessment but which may not be submitted to the alien for security reasons may be produced. During the proceedings in open court, the alien is represented by a court-assigned counsel. To safeguard the alien's interests during the hearing behind closed doors, a special advocate will be assigned and will exercise a party's rights during this part of the case; however with the proviso that the special advocate may not discuss the case with the alien. The purpose of the special court hearing is to achieve a balance between the need to keep information confidential for security reasons on the one hand and ensuring that it is actually possible to safeguard the alien's interests during the case effectively on the other hand.

The Supreme Court found that the Danish Security and Intelligence Service's statements compared to the non-confidential material did not contain detailed information on the time and place of or circumstances behind the individual allegations, and that the alien could in reality only have safeguarded his interests during the case by denying guilt altogether. Against this background, the Supreme Court found that the alien had not had an actual opportunity to effectively safeguard his interest during the case, and that the decision of the Minister of Integration Affairs that the alien had to be regarded as a danger to national security and the Ministry of Integration Affairs' expulsion decision could not be upheld. Also, the Supreme Court held that the decision of the Ministry of Integration Affairs had infringed on the alien's right to privacy and right to respect for family life, cf. Article 8 of the European Human Rights Convention, and that the alien was, thus, entitled to compensation in an amount of DKK 35,000.

The High Court had reached the same conclusion.

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