Annulment or change of preventive detention sentence

Case no. 142/2019
Order made on 11 August 2020

The Prosecution Service
vs.
T

In 2009, T was sentenced to preventive detention for aggravated rape and attempted rape.

The case concerned the issue of whether the preventive detention sentence should be annulled or changed and, in that context, whether T’s rights under the European Convention on Human Rights had been infringed.

In May 2014, T requested that the courts be asked to review his case; among other things, with a view to annulment of the preventive detention measure. In August 2014, the Prosecution Service brought the question of annulment before the District Court, and in September 2015, it held that the detention measure should not be annulled. The High Court affirmed this decision in April 2019.

The Supreme Court found that the length of proceedings – which now extended beyond six years – was manifestly inconsistent with his right to an expeditious consideration of the issue of the lawfulness of his continued detainment, and that his rights under the ECHR had thus been infringed.

According to a psychiatric specialist medical report issued in October 2017, T had not shown signs of being dangerous for at least four years, and it was necessary to assess him in more unrestricted environment, such as during leave, to determine his dangerousness after a possible conditional discharge from preventive detention.

The Supreme Court also found that the Prosecution Service, at least after the specialist’s report was issued in October 2017, should have undertaken to start a process to assess T’s dangerousness under more unrestricted circumstances. Since the reason for not doing so was that T had been sentenced to expulsion, and that a case concerning his transfer to Romania was pending, T had been put in a less favourable position than Danes sentenced to secure detention, which amounted to an additional infringement of the ECHR.

The Supreme Court also found that, considering the medical reports as well as the severity of the offences he was convicted of, there were not sufficient grounds to hold that continued detention was not necessary to prevent danger to other people’s life, body, health or freedom. The Supreme Court noted that, although T’s rights under the ECHR had been infringed, this could at present not lead to annulment of the detention measure. The Supreme Court also stated that its decision not to annul the detention measure was conditional on the Prosecution Service and the Department of Prisons and Probation in cooperation immediately taking measures to start a process of changing the conditions of T’s imprisonment to provide a sufficiently reliable basis for assessing his dangerousness.

The Supreme Court thus affirmed the order of the High Court.