Testing the limits of the European Court of Human Rights

Danish courts often overturn deportation orders for foreign criminals in order to satisfy obligations under the European Convention on Human Rights. While the government is now seeking international backing to allow national courts more say on deportation, critics argue that the issue lies with the Danish courts and their overly strict interpretation of the convention

Created in the aftermath of World War II, the European Convention on Human Rights is central to Europe’s understanding of the freedoms that people are owed. The 47 signatories are members of the Council Europe, whose citizens can take cases to the European Court on Human Rights (ECHR), which rules on potential violations.

But in recent years, the ECHR has proved unpopular among some member states, including Denmark, which argues that the convention makes it too difficult to deport foreign criminals.

Poised to take over the rotating chairmanship of the Council of Europe for six months beginning in November, the government wants to initiate a discussion on how the ECHR interprets the European Convention on Human Rights. But Foreign Minister Anders Samuelsen of the Liberal Alliance, who will serve as the Council’s chairman, is not calling for a total reformation of the system.

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“The reason we are raising this debate is that we want to protect our conventions from losing public support. Support falls when judgments are passed that the public does not understand – when you get a sense that the criminals are being protected rather than a basic understanding of the law,” he said.

“Denmark needs a strong international legal system whose decisions are respected.”

PM Lars Løkke Rasmussen issued a statement supporting the foreign minister’s initiative.

“In Denmark, we are witnessing a critical debate on the interpretation of the conventions by the European Court of Human Rights, specifically concerning the deportation of criminal foreigners. It is not compatible with the public’s understanding of human rights when deeply criminal persons cannot be deported. That I can neither understand nor explain,” he says.

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Take serial offender and Croatian citizen Gimi Levakovic, whose deportation order was overturned in May 2016 by the Supreme Court, which found it would violate his right to a family life as outlined in the ECHR (he has two young children in Denmark).

Cases like his have frustrated politicians, who argue that the convention has too much power to overrule Danish law. The Danish People’s Party (DF) even wants the convention written out of Danish law.

“Today we have a convention in which it is very difficult to alter anything. It should be much easier to deport criminal foreigners and easier for Denmark to decide which family reunification rules should apply to refugees. At the same time, we should generally have better control of our immigration policies in Denmark,” Martin Henriksen, foreign spokesperson for the party, told Berlingske newspaper.

Modest plans
But are the court and convention really getting in the way of deporting foreign criminals? Danish courts could tighten their practice regarding the deportation of foreign criminals without falling foul of the ECHR in Strasbourg, argues Jonas Christoffersen, Director of the Institute of Human Rights.

“In cases resulting in sentences of least a couple of years, there is a clear difference in sentences passed by the European Court of Human Rights and the Danish courts,” he told Altinget. “[The two Danish high courts] judge more mildly than the Strasbourg court when it comes to deporting foreigners for serious crimes.”

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Mikael Rask Madsen, Director and professor at the Centre of Excellence for International Courts at the University of Copenhagen, agrees. In the case of Levakovic, it is normal for national courts to assess an individual’s ‘affiliation’, or where they belong, regardless of their nationality.

“This is certainly a real issue in this era of globalisation. However, the case was decided by the Danish Supreme Court and not, as some seem to believe, by the European Court of Human Rights. The real issue in this case is how Denmark interprets the Convention and whether this reflects the contemporary standards in Strasbourg,” he says, adding that the idea that Denmark is not able to deport criminal foreigners has been debunked – Justitia has determined that Denmark deported 2000 criminal foreigners last year alone.

The government has stopped short of calling for the human rights convention to be renegotiated, however. Doing so could result in a cascade of requests from council members that might prefer looser rules on human rights. Russia and Azerbaijan, for example, have repeatedly been sanctioned by the courts for violating human rights.

According to Madsen, the government’s actual ambitions are far more modest.

“The primary focus is on the subsidiarity principle, in an attempt to make it clearer when national legal institutions are in a better position to make decisions than European ones. Another key goal is to reduce the number of cases currently pending in Strasbourg. Finally, the government wants to improve the interaction between the system in Strasbourg and member states, that is, the legal-political interaction.”

He adds that the Danish government also wants to give national governments more power at the political level of the Council of Europe. This would give member states greater ability to manage developments in Strasbourg.

“The government will focus on how the Committee of Ministers – the principal organ of the Council in terms of political power – can be better positioned to have a say and comment on developments in how the Court is developing and interpreting the convention,” Madsen says.

This could result in a declaration – signed by the 47 member states at some point over the next six months – allowing national courts greater room to manoeuvre when it comes to deporting foreign criminals.

“Denmark can’t show up with a narrow national agenda only focused on the expulsion of foreign criminals, but must instead bring to the table broader issues of interest to many member states. If one seeks influence in Europe, including on specific issues, the way ahead is to broader issues and that way impact more indirectly on other areas,” says Madsen

Government to tighten legislation
In October, the government, along with the Social Democrats and DF, established a working group to recommend action to help the Danish courts deport more criminal foreigners. The group made five recommendations.

In a November meeting of Parliament’s Commission for Foreigners and Integration, Integration Minister Inger Støjberg said the government was taking steps to implement the recommendations.

“My opinion is clear: criminal foreigners do not belong in Denmark. The government is determined to leave no stone unturned in deporting the highest possible number of criminal foreigners,” Støjberg said at the consultation.

But Trine Bramsen, Justice Spokesperson for the Social Democrats, later told Rizau that she was not convinced by Støjberg’s answer.

“We have not been given an answer to the question of whether Danish courts are able to deport more people. This is definitely not the last we’ve heard of this case.” M

The recommendations of the government’s work group on criminal deportations:

  • Seek administrative deportation and rejection of criminal foreigners for the sake of public order
  • Make rules regarding judicial deportation sentencing for criminal foreigners clearer
  • Make rules regarding conditional deportation clearer.
  • Enable authorities to impose shorter entry bans, which should trigger more deportations
  • Best practices – give all relevant institutions better access to information about court verdicts regarding deportations

The European Convention on Human Rights

An international treaty under which the member States of the Council of Europe promise to secure fundamental civil and political rights, not only to their own citizens but also to everyone within their jurisdiction. The Convention, which was signed on 4 November 1950 in Rome, entered into force in 1953. Source: ECHR

The European Court of Human Rights

The European Court of Human Rights is an international court set up in 1959. It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Since 1998 it has sat as a full-time court and individuals can apply to it directly.In almost fifty years the Court has delivered more than 10,000 judgments. These are binding on the countries concerned and have led governments to alter their legislation and administrative practice in a wide range of areas. Source: ECHR


By Joshua Hollingdale

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