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Denmark / Supreme Court / 40/2020

The Prosecution Service v. T
Deciding body type
National Court/Tribunal
Deciding body
Supreme Court
Type
Decision
Decision date
19/08/2020

Carta de los Derechos Fundamentales de la Unión Europea

Title II: Freedoms

Article 7 - Respect for private and family life

VIEW FULL CASE
  • Denmark / Supreme Court / 40/2020
    Key facts of the case:
    Note that this executive summary has the purpose to make us understand: 1. the facts of the case (so the “real life story”) 2. the legal background against which the case unfolded (what are the relevant legal norms that are applied) T was charged with assault under extremely aggravating circumstances by on 27 December 2017 having kicked or hit the deceased (hereafter F) three times in the back and by stabbing F several times in the head with a screwdriver or similar object. T was in a relationship with F and was employed by F as a stable manager, F ran a business with horses and cattle. T was at a Christmas party at a friend’s on 27 December 2017, on the same evening he was picked up by F in a car. F was later found dead. T was convicted of aggregated violence resulting in death in the Eastern High Court. T was sentenced to 3 years and 6 months imprisonment and T was sentenced to expulsion and barred from entering Denmark.
    Key legal question raised by the Court:

    The case concerned the question whether the action fell within Section 246 in the Danish Criminal Code. If so, T would be found guilty of assault with extremely aggravating circumstances, and the nature of the criminal offense would speak in favor of expulsion and being barred from entering Denmark. The Eastern High Court also assessed the question of whether expulsion was possible. As T is a Norweigan citizen and therefore an EEA citizen, expulsion was only possible if it was in accordance with the EU principles regarding limitations on the right to free movement, cf. Section 26 b in the Danish Act on Foreigners implementing Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004. The

    Eastern High Court made an assessment of T’s attachment to Denmark and whether expulsion was proportionate in accordance with art. 8 in the European Convention on Human Rights and art. 7 in the EU Charter of Fundamental Rights. The Supreme Court had to assess, whether the High Court’s application of the law was correct.

    Outcome of the case:
    On the question whether the action fell within Section 246 in the Danish Criminal Code, the eastern high court found that it was proven that T had commited the acts and that the nature of the acts fell within Section 246 in the Danish Criminal Code. Considering the nature of and the seriousness of the crime the High Court found, after an overall assessment, that expulsion was not a disproportionate measure. Expulsion was therefore in accordance with the EU principles regarding limitations on the right to free movement, cf. Section 26 b in the Danish Act on Foreigners implementing Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004. The Supreme Court upheld the judgement.
     
  • Paragraphs referring to EU Charter

    “An assessment of the proportionality of the interference with the right to free movement is required, cf. art. 27 (2) and art. 28 (1) in the EU Directive on Freedom of Movement and Residence. The proportionality assessment must include consideration to the case law of the European Court of Human Rights pertaining to art. 8 in the European Convention of Human Rights, cf. article 7 in the EU Charter of Fundamental Rights.” “The High Court concludes that T has a limited attachment to Denmark and that herpredominant attachment is to Norway. Subsequently and due to the nature and the seriousness of the crime, the High Court – after an overall assessment – finds that permanent expulsion is not a disproportionate interference in violation of art. 27 (2) and art. 28 (1) of the EU Directive on Freedom of Movement and Residence together with art. 8 of the European Convention of Human Rights and art. 7 of the EU Charter of Fundamental Rights.”

  • Paragraphs referring to EU Charter (original language)

    ”Der skal herefter foretages en proportionalitetsvurdering, jf. opholdsdirektivets artikel 27, stk. 2, 1. led, og artikel 28, stk. 1. Ved denne vurdering skal der bl.a. tages hensyn til Menneskerettighedsdomstolens praksis vedrørende Menneskerettighedskonventionens artikel 8 om respekt for privat og familieliv, jf. herved artikel 7 i Den Europæiske Unions Charter om grundlæggende rettigheder.” ”Landsretten finder, at tiltaltes tilknytning til Danmark er begrænset, og at hendes altovervejende tilknytning er til Norge. Herefter og efter arten og grovheden af tiltaltes kriminalitet finder landsretten efter en samlet vurdering, at udvisning af tiltalte med indrejseforbud for bestandig ikke er et uproportionalt indgreb i strid med opholdsdirektivets artikel 27, stk. 2, 1, led, og artikel 28, stk. 1, samt Menneskerettighedskonventionens artikel 8 og EU-Charterets artikel 7.”