Denmark

The case concerns the disproportionate interference in the right to private life of two children, born in Ukraine in December 2013 through a commercial surrogacy agreement, due to the refusal of the authorities (ultimately confirmed by the Supreme Court in November 2020) to allow their adoption by their intended mother (violation of Article 8 – right to respect for private life of the children).

The Court was not satisfied that the Danish authorities, when refusing to allow the adoption, had struck a fair balance between, on the one hand, the specific children’s interest in obtaining a legal parent-child relationship with their intended mother, and, on the other, the rights of others, namely those who, in general and the abstract, had risked being negatively affected by commercial surrogacy arrangement.

The cases concern expulsion orders combined with permanent re-entry bans following criminal convictions, finally upheld during proceedings requesting revocation of the expulsion order in May 2015 (Savran) and during criminal proceedings in January 2019 (Abdi). The cases concern “settled migrants” who arrived in Denmark at a young age. The Court found shortcomings in the balancing exercise of relevant interests performed by the national authorities and that the expulsion orders constituted disproportionate interferences with their right to private life (violation of Article 8). The national authorities should have taken more adequately into account issues such as the applicants’ strong ties to Denmark and lack of ties to the countries of destination, certain aspects of the assessments of the nature and seriousness of the criminal acts committed (including in the case of Savran that he was suffering from a serious mental illness at the time of the offence), the risk of reoffending following a change in personal circumstances since the offences had been committed (Savran) as well as the permanent nature of the re-entry bans.

The authorities submitted an action report on 15 May 2023 which is currently under assessment. Its main content has been summarised below.

The Government submitted a proposed bill on 28 April 2022 containing amendments to inter alia section 50, 50a and 50b of the Danish Aliens Act. The purpose of the proposed bill was, inter alia, to follow up on the European Court’s judgments in the cases Savran and Abdi. The amendments were adopted by Parliament on 8 June 2022 and entered into force on 23 June 2022.
Firstly, the amendments clarify in section 50a of the Danish Aliens Act that the Danish courts, in connection with a subsequent review of an expulsion order, must make a full examination of whether the enforcement of the expulsion would be in breach of Article 8 of the Convention.
Secondly, the amendments make it clear that the Danish courts, in connection with a subsequent review of whether an expulsion order must be revoked pursuant to sections 50, 50a and 50b of the Danish Aliens Act, must be able to reduce the period of the imposed re-entry ban.
The authorities have also provided examples of domestic case law showing how practice is now aligned with the Convention requirement.
The authorities also consider to change the wording of section 977 of the Danish Administration of Justice Act so that it will be clear that the Danish Prosecution Service can apply to the Special Court of Indictment and Revision for resumption regardless of consent from the convicted person, when the European Court has stated in the case that the Convention has been violated.
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This case concerns the inhuman or degrading treatment in 2013 of a man suffering from paranoid schizophrenia who was strapped to a restraint bed in a psychiatric hospital for nearly 23 hours (violation of article 3). Whilst the initial decision to strap him to a restraint bed was justified because he represented a danger to the staff and other patients at the hospital, the continuation and duration of the restraint measure was not strictly necessary and not respectful of his human dignity.

The authorities underline that the doctor’s decision, in the present case, to maintain the restraint measure based on the applicant’s “potential” danger to others was not in accordance with domestic law, which requires the danger to be “immediate” or “imminent”. To ensure that the medical staff at psychiatric hospitals understand the conditions in the law, the Health Authorities have elaborated and clarified the conditions for restraint measures in the existing guidelines.

To avoid situations like the present case, where there was no assessment by a doctor for a period of almost twelve hours, the Mental Health Act has been changed. The change has introduced specific intervals between the three reviews of patients who are submitted to compulsory restraints by the doctor and established a duty for the permanent guard to make on-going written descriptions of the state of patients submitted to compulsory restraints at least every 15 minutes. The first review of the patient must take place four hours, at the latest, after the decision to use compulsory restraint measures. The following reviews must take place with no longer intervals than 10 hours. The new legislation entered into force 1 January 2022.

In their most recent submission of 11 July 2022 two NGOs (Dignity and Better Psychiatry) and an NHRI (The Danish Institute for Human Rights) argue that the case should be triggered up to the enhanced procedure; and urge the Danish Government to allocate more resources to the psychiatry field in order to enable the institutions to apply existing knowledge and experience on how to reduce the use of means of restraint in psychiatric wards and to introduce effective legal guarantees supporting the overall principles of the Danish Mental Health Act.