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Supreme Court of Denmark

Breach of residence and reporting duty by alien 

Case no. 217/2016

Judgment delivered on 17 January 2017

The Prosecution Service

Breach of residence and reporting duty by alien

The case concerned an alien who was sentenced by the Supreme Court in 2005 to prison for eight years for serious drug crime and expelled from Denmark with a permanent entry ban.

In 2009, when he was released on parole, the immigration authorities decided that he could not be deported to his home country. At the same time, they ordered him to reside at and report daily to the Sandholm refugee centre.

The issue before the Supreme Court was whether the alien could be punished for breach of the residence and reporting duty in the period from February 2010 to February 2015. The Supreme Court had to determine whether the orders amounted to disproportionate interference of the freedom of movement afforded to him by Article 2 of Protocol 4 of the European Human Rights Convention and of his right to family life under Article 8 of the Convention, and whether the orders were in contravention of the prohibition against discrimination in Article 14.

The Danish Immigration Service had continuously assessed whether forcing him to stay at the Sandholm refugee centre could be regarded as a proportionate measure, and in the period concerned, they made a decision to that effect on 9 October 2013.

The majority of the Supreme Court stated, among other things, that when the Danish Immigration Service made its decision on 9 October 2013, the residence and reporting duty had been in effect for 3 years and 11 months. At the time, the Danish Immigration Service had a reliable basis for assessing that there was no real risk that the alien would hide from the police, that there was no prospect of expelling him in the foreseeable future, that it was not possible for him to travel voluntarily to his home country due to the risk of torture and other degrading treatment, and that there was no other country for him to travel to.

The majority of the Supreme Court ruled that the alien’s duty to reside at the Sandholm refugee centre from 9 October 2013 amounted to a disproportionate interference with his freedom of movement in contravention of Article 2 of Protocol 4. The Immigration Service’s decision of 9 October 2013 to prolong his stay at Sandholm was thus invalid. As a result, the duty to report to Sandholm was invalid from that date.

Accordingly, the alien was punished for violation of the residence and reporting duty in the period up to 9 October 2013 and acquitted of all violations after that date.

His sentence was reduced to 30 days’ imprisonment.

The High Court had partly reached a different conclusion.

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