Violation of reporting duty

Case no. 122/2017
Judgment delivered on 5 January 2018

The Prosecution Service
vs.
T

The case concerned an alien who was considered to be a danger to national security and was expelled from Denmark with a permanent entry ban in January 2008. In April 2008, the immigration authorities assessed that he was in danger of being tortured etc. if he returned to Iraq, and decided that he should not be deported. Instead, they ordered him to reside at and report daily to the Sandholm refugee centre.

The issue before the Supreme Court concerned whether the alien could be punished for having violated his reporting duty 1,183 times in the period from late March 2012 and until the end of June 2015. The Supreme Court had to determine whether the orders amounted to a disproportionate restriction of the freedom of movement afforded to him by Article 2 of Protocol 4 of the European Human Rights Convention and of the right to respect for his private life under Article 8 of the Convention, and whether the orders were in contravention of the prohibition against discrimination in Article 14.

In relation to Article 2 of Protocol 4, the Supreme Court held that regard should be taken of the grounds for expelling the alien in determining whether the reporting duty was a proportionate measure. In addition, when making the proportionality assessment, account should also be taken of the facts that the residence duty was not up for review in the case and that the alien had been ordered to report to the place where he lived. The reporting duty thus amounted to a relatively minor restriction of the alien's freedom of movement and was not a disproportionate measure, although it may over time become increasingly difficult to justify any restriction of the freedom of movement.

The alien was not married and had no children, and as the reporting duty amounted to a relatively minor restriction of his freedom of movement, the Supreme Court agreed that Article 8 of the Convention had not been violated.

The Supreme Court also stated that the reporting duty had not been imposed because the alien was considered to be a danger to national security, but rather because it was not possible to deport him. Accordingly, the reporting duty could not give rise to any concerns about violation of Article 14 of the Convention read with Article 2 of Protocol 4. This was not changed by the fact that the grounds for his expulsion were taken into consideration in the assessment of the proportionality of the reporting duty.

The High Court’s judgment, sentencing the alien to imprisonment for 30 days, was thus upheld.