No expulsion of mentally ill person

Case no. 52/2024
Judgment delivered on 30 January 2025

The Prosecution Service
vs.
T

The case concerned T, who was found guilty of violence and threat of violence under sections 244(1) and 266 of the Danish Criminal Code by having kicked a resident at the social psychi-atric centre where he lived on two occasions and threatening one of them on one occasion. T was exempted from punishment under section 16(1) of the Criminal Code due to diminished criminal culpability because of mental illness.

The issue before the Supreme Court only concerned the expulsion order.

T, who had been legally resident in Denmark for approx. 7½ years, was sentenced to outpa-tient treatment at a psychiatric ward under the supervision of the Department of Prisons and Probation so that they and the chief physician could decide on detention for, among other things, two cases of kicking fellow residents. Based on the information provided about the two acts of violence, the Supreme Court found that the offences would have resulted in an unsuspended prison sentence if T had not been exempted from punishment under section 16(1) of the Criminal Code. There was therefore a legal basis for expelling T under section 23(1), cf. section 22(6), of the Danish Aliens Act, and T was thus to be expelled, unless this would with certainty be in contravention of Denmark’s international obligations, cf. article 8 of the European Convention on Human Rights.

The Supreme Court stated, among other things, that expulsion had a legal basis in the Aliens Act and was intended to prevent disorder or crime. The decisive factor was then whether ex-pulsion could be considered necessary in view of these purposes, which had to be based on an assessment of proportionality. 

Particularly with regard to cases where the alien has been exempted from punishment by rea-son of diminished criminal culpability, the Supreme Court referred to the fact that the case law of the European Court of Human Rights 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 T would be disproportionate and thus in viola-tion of article 8.

The Supreme Court gave particular importance to the fact that T had been exempted from punishment by reason of insanity and that the crime, which was committed in 2021, was not planned, but was a spontaneous reaction to fellow residents at the facility. In 2023, T was treated with an antipsychotic drug, which stabilised his mental disorder significantly, and he had not committed a crime since then.

The Supreme Court therefore issued T with an expulsion warning.

The High Court had reached a different conclusion.