Key facts of the case:
A, an Iraqi citizen, who had not legally resided in Denmark, refused to cooperate in relation to his extraction to Iraq. Due to his lack of consent, the Iraqi authorities would not cooperate in concern of the forced return of him. A had been detained under the Aliens Act since 29 March 2017. The case concerned the question of the continued detention of him under the Aliens Act as detention of a foreigner without a legal residence in order to motivate him to cooperate on his extradition to Iraq. Such detention may last for a maximum of 18 months, and the rules for this must be interpreted in accordance with the EU Return Directive.
The case concerned whether the detention pursuant to section 37, subsection 5 and section 37, subsection 8 of Aliens Act was in accordance to article 15 of the EU Return Directive.
In addition the court stressed that, section 37, subsection 8 is in accordance to article 6 of the Charter and article 5 of the ECHR.
Key legal question raised by the Court:
The key legal question raised by the Supreme Court was whether the detention of A pursuant to section 37, subsection 5 and section 37, subsection 8 of Aliens Act was in compliance to article 15 of the EU Return Directive.
Outcome of the case:
The Supreme Court found that the conditions set out in section 37, subsection 8 and the EU Return Directive was not fulfilled, why the detention of A was unlawful.
Pursuant to Article 6 of the EU Charter of Fundamental Rights everyone has the right to liberty and security of person. In the government remarks to Article 6 it appears, inter alia, that the rights referred to in Article 6 correspond to the rights guaranteed by Article 5 of the ECHR and cf. Article 52 (3), has the same meaning and scope.
It appears from the government remarks to the to section 37 (8) that the provision must be interpreted in accordance with Article 15 of the EU Return Directive. It is in addition assumed that the provision is in accordance with Article 6 of the EU Charter of Fundamental Rights, which corresponds to Article 5 of the European Convention on Human Rights.
Efter artikel 6 i EU’s Charter om Grundlæggende Rettigheder har enhver ret til frihed og personlig sikkerhed. Af de forklarende bemærkninger til artikel 6 fremgår bl.a., at de rettigheder, der er omhandlet i artikel 6, svarer til de rettigheder, der er sikret ved artikel 5 i EMRK, og at de, jf. herved artikel 52, stk. 3, har samme betydning og omfang.
Det fremgår af forarbejderne til § 37, stk. 8, at bestemmelsen skal fortolkes i overensstemmelse med artikel 15 i tilbagesendelsesdirektivet. Det er endvidere forudsat, at bestemmelsen er i overensstemmelse med artikel 6 i EU’s Charter om Grundlæggende Rettigheder, der svarer til artikel 5 i Den Europæiske Menneskerettighedskonvention.