Physical restraint in contravention ...

Case no. BS-2308/2020-HJR
Judgment delivered on 3 February 2021

A
vs.
The Region of Southern Denmark

Intervener for A:
Dignity – Danish Institute Against Torture

According to an order issued in January 2015, A was considered dangerous and was to be committed to the maximum-security forensic psychiatry facility, and according to a judgment upheld by the High Court, A was also sentenced to the facility for a number of violations, including violence and threats of violence against the staff at the forensic psychiatry unit. However, due to shortage of space, A was only moved to the maximum-security forensic psychiatry facility in July 2016 and was therefore temporarily committed to the forensic psychiatry unit. At the unit, he was physically restrained in the period from 22 December 2014 to 19 January 2015 after having assaulted a member of the staff. The case before the Supreme Court concerned the lawfulness of the continued restraint in the period from 19 January to 26 October 2015.

The Supreme Court was satisfied that A posed an imminent danger to other people’s life, body, health and safety, and that it was not possible for the staff at the forensic psychiatry unit to counter the danger by less intrusive measures than physical restraint. The measure was thus in accordance with the provisions of the Danish Mental Health Act.

In the Supreme Court’s opinion, it must be assumed that A would have been made subject to one or more of the special restraint measures used by the maximum-security forensic psychiatry facility in addition or as an alternative to physical restraint in bed if he had been transferred to the facility. It therefore had to be assumed that he had actually been physically restrained to his bed from 19 January 2015 to a much larger extent than would have been the case if he had been transferred. Under these circumstances, the Supreme Court held that Article 3 of the European Convention on Human Rights had been infringed in the period from 19 January to 26 October 2015.

Based on an overall estimate, the Supreme Court awarded DKK 250,000 in compensation to A.

The High Court had reached a different conclusion.