No expulsion of mentally ill person

Case no. 24/2024
Judgment delivered on 13 September 2024

The Prosecution Service
vs.
A

The case concerned A, who was found guilty of threatening violence under section 119(1) of the Danish Criminal Code after having threatened an employee at Psychiatric Centre X, where he was hospitalised, to stab him with a key in the throat while he had a key between his fingers. He had also been found guilty of threatening a witness under section 123(1) of the Criminal Code after having stated in the context of the employee’s explanation to the police or in court that he would kill the employee in court. In the District Court, A admitted the facts, and he was exempted from punishment under section 16(1) of the Penal Code due to diminished criminal culpability because of mental illness.

The issue before both the High Court and the Supreme Court only concerned the expulsion order. 

The Supreme Court stated that according to the case-law of the European Court of Human Rights, for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion. In its judgment of 9 April 2024 in case 2116/21 (Nguyen v Denmark), the ECHR considered that a 46-year old alien who came to Denmark at the age of 13 had spent the majority of her childhood and youth in Denmark.

Particularly with regard to cases where the alien has been exempted from punishment by reason of diminished criminal culpability, the case-law of the ECHR shows that it must be considered when assessing the nature and gravity of the offence committed that it was committed while the offender was mentally ill, cf. judgment of the European Court of Human Rights of 7 December 2021 in case 57467/15 (Savran v Denmark) and judgment of 30 May 2023 in case 8757/20 (Azzaqui v the Netherlands). 

With regard to the proportionality assessment in the present case, the Supreme Court stated that based on an overall assessment, expelling A would be disproportionate and thus in violation of Article 8. Accordingly, it did not find that were such very serious reasons that are required to expel the alien according to the ECHR’s case law in a situation as in this case where A came to Denmark at the age of 13.

The Supreme Court considered primarily that A had been exempted from punishment due to diminished criminal culpability because of mental illness for the threats. The threats were not planned, but were spontaneous reactions during his hospitalisation in a psychiatric ward. The offences were committed in December 2020 and February 2021, and A had not physically attacked neither staff nor other patients since then. Since 2010, he had also been exempted from punishment due to diminished criminal culpability because of mental illness for previously committed offences. He had strong ties with Denmark and limited ties with Somalia.

The Supreme Court therefore issued A with an expulsion warning.

The High Court had reached a different conclusion.