Judgment delivered on 31 January 2017
Capital Region of Denmark
Determination of compensation for unlawful physical restraint
A, who had been sentenced to secure detention for, among other things, serious violence and abuse committed under particularly aggravating circumstances, rape and deprivation of liberty, was transferred to the psychiatric hospital Psykiatrisk Center Sct. Hans during the serving of his sentence. During his stay there, A, who suffered from paranoid schizophrenia, acted in a threatening manner and was on several occasions violent to his fellow patients, just as his behaviour was regarded as unpredictable according to the medical information provided. For these reasons, in the late summer of 2013, A was physically restrained to his bed. It was not disputed in the case that physical restraint for 18 days was unlawful. In the autumn of 2013, A was committed to the maximum-security forensic psychiatric facility in Nykøbing Sjælland after the Ministry of Justice had issued an order holding that A was dangerous, i.e. that he continuously posed a serious and imminent danger to the lives and health of others.
The case before the Supreme Court concerned the determination of compensation for the unlawful physical restraint.
The Supreme Court stated that the physical restraint amounted to violation of Article 3 of the European Human Rights Convention and held that A was entitled to compensation of DKK 75,000 (dissenting opinion in favour of DKK 50,000). In the determination of compensation, the Supreme Court had regard to the fact that unlawful physical restraint for 18 days was a serious infringement of his rights. However, it was also taken into consideration that the doctors at Psykiatrisk Center Sct. Hans had assessed on an ongoing basis whether the conditions for continuing physical restraint of A were met, and that these assessments must be regarded as having been difficult to make considering A’s mental issues and behaviour.
The High Court had reached a different conclusion.