Judgment delivered on 21 June 2017
The Danish Immigration Service
The Ministry of Immigration and Integration
No compensation payable for residence and reporting duty which was held to be a disproportionate interference with an alien's freedom of movement in contravention of Article 2 of Protocol 4 of the European Convention on Human Rights
In 2006, A was expelled from Denmark with a 10-year entry ban for drug crime. According to the Refugee Appeals Board's decision, he could not be returned to his home country and was given exceptional leave to remain in Denmark. Accordingly, when he was released in 2007, he was ordered to stay at the Sandholm refugee centre and was later ordered to report to the police at the centre originally once and later three times a week. In its judgment of 1 June 2012, the Supreme Court ruled that the immigration authorities' decision to impose a residence and reporting duty was "at least at this point in time" a disproportionate interference with A's freedom of movement in contravention of Article 2 of Protocol 4 of the European Convention on Human Rights. The case now concerned whether A was entitled to compensation as a result of this infringement.
Firstly, the Supreme Court held that according to Article 13 of the Convention read with the principle in Section 26 of the Danish Liability for Damages Act, A was to be awarded compensation if he was entitled to compensation according to the European Court of Human Rights' practice under Article 41 of the Convention.
The majority then ruled that the Court of Human Rights has not been called on to consider the issue of the proportionality of interference with the freedom of movement of persons with exceptional leave to remain nor the issue of compensation, and that according to the Court's practice, not all violations of the Convention entitle the aggrieved party to compensation. In many cases where an act, procedure or practice does not comply with the Convention, it is enough to recognise that such infringement took place.
The majority held that when the Supreme Court recognised the infringement, and it was thereby brought to an end, A's right to an effective remedy under Article 13 of the Convention had been granted, and A was thus not entitled to compensation.
The High Court had reached a different conclusion.