Expulsion not revoked

Case no. 87/2020
Order made on 2 February 2022

The Prosecution Service
vs.
T

In 2019, T, who had been diagnosed with paranoid schizophrenia, was convicted of three counts of rape of the same women. He was acquitted pursuant to Section 16(1) of the Danish Criminal Code and sentenced to psychiatric treatment at a psychiatric ward under Section 68 of the Code. In connection with this judgment, T was expelled with a permanent entry ban.

The case concerned the issue of whether the expulsion of T should be revoked under Section 50a(2) of the Danish Aliens Act because his state of health constituted a decisive argument against enforcement of the expulsion to Turkey, including whether upholding the expulsion would be in contravention of Articles 3 and 8 of the European Convention on Human Rights, as most recently interpreted by the European Court of Human Rights in its judgement of 7 December 2021 in case 57467/15 (Savran v. Denmark).

Referring to, among other things, this latter judgement, the Supreme Court found that expelling T to Turkey would not involve an infringement of Article 3 of the Convention.

With regard to Article 8 of the Convention, the Supreme Court noted that the European Court of Human Right’s judgement of 7 December 2021 implied that, in connection with a review under Section 50a of the Aliens Act, a new and independent review of the relationship with Article 8 must be made.

The Supreme Court found that there was no information available in the case to justify any other assessment in respect of Article 8 than that of the High Court in the criminal proceedings against T in 2019. Considering the severity of the crime as well as the information available on T’s private life, the Supreme Court also found that the fact that T had been acquitted due to diminished criminal culpability because of mental illness could not lead to another conclusion of the overall balancing of interests required in the assessment under Article 8 according to the European Court of Human Right’s most recent case law.

Against this background, the Supreme Court held that the state of T’s health and his need for treatment were not decisive arguments against expelling him to Turkey, and the expulsion was thus upheld.

The High Court had reached a different conclusion.