A Former Danish Minister for Immigration is Sentenced: A new Chapter in the Danish ‘Migrants Saga’

On December 13 2021 the Danish Court of Impeachment (Rigsretten) convicted Inger Støjberg, a former Minister of Immigration, for having unlawfully instructed public authorities to separate migrant couples one of whom was a minor. This special Court, which Parliament assembles, exists to try ministers accused of maladministration. Although nominally a permanent body, the assembly of the Court is an extremely rare occurrence, this being only the sixth time it sat since the adoption of the Danish 1849 Constitution. This post examines the facts that led to the judgment and contextualises it within the general discourse on human rights in Denmark and beyond.

The Danish ‘Migrants Saga’: A Recap

As explained in an earlier post, the controversy over immigration is longstanding in Danish politics and is the result of the growing weight of parties that have successfully focused the political agenda on ‘non-western immigrants’. Despite being the first signatory to the 1951 Refugee Convention, in recent years Denmark has adopted increasingly draconian measures to curb the number of asylum seekers. These include the infamous ‘jewellery act’, which allows Danish authorities to seize assets from asylum seekers; the designation of parts of Syria as ‘safe’ for asylum seekers to return; and the potential creation of an Australian-style system for processing asylum applications in third countries.

The Danish Government also sought to use its chairmanship of the Council of Europe (Nov 2017 – May 2018) to reform the European Convention on Human Rights (ECHR), in order to make it easier to deport foreign criminals. Their proposal for a political declaration led to intense debate, among others, on this blog (see here, here, here, and here). In the end, a watered-down version of the ‘Copenhagen Declaration’ was adopted. The present judgment of the Court of Impeachment is another chapter in this ongoing saga.

The Impeachment Court

In accordance with s16 of the Danish Constitution, ministers may be impeached for maladministration. More detail is provided in s5 of the 1964 Ministerial Responsibility Act: ‘A minister shall be punished if he intentionally or by gross negligence disregards the duties which are imposed upon him by the Constitution or legislation in general or the nature of the post’. The maximum sanction for maladministration is 2 years’ imprisonment.

The first step before assembling the Court of Impeachment is to establish a Commission of Inquiry to investigate any alleged misconduct. A Commission (instrukskommissionen) was established in January 2020. It issued its first report in December 2020, detailing the events that led to the separation of asylum-seeking couples and Støjberg’s role herein. The report provided the basis for the impeachment proceedings and Parliament assembled the special Court in February 2021.

The Impeachment Court is assembled by a majority in Parliament and consists of up to 15 Supreme Court judges and an equal number of lay judges appointed by Parliament. The reason for the participation of lay judges is that impeachment cases require a certain insight into political matters. 

The Gist of the Case: Administrative Procedure vs Human Rights Law

The judgment of the Impeachment Court relates to one of the many (over 100) restrictions to immigration law that were introduced under Støjberg’s tenure as minister between 2015 and 2019. Following reports that underaged asylum seekers, between 15 and 17-years-of-age, lived with their adult spouses in asylum centres, Støjberg took to Facebook saying that the practice was ‘completely unacceptable’ and must be ‘immediately stopped’. This was regardless of the fact that until 2017 Danish law allowed minors, as young as 15, to marry.

On February 10th, 2016, the Ministry for Immigration issued a press release, stating: ‘Under the new guidelines, no minor under the age of 18 may be accommodated in the same asylum centre as a spouse or partner’. The press release was sent to the Immigration Service, which immediately began to separate couples already accommodated in asylum centres. In total, 18 couples were sent to separate centres during spring 2016.

The press release, which Støjberg maintained was mere ‘political communication’, was central to the impeachment case. Its importance lies in the fact that no other guidelines were issued until March 2016, by which most couples had already been separated. The crucial fact about the press release was that it established an absolute rule according to which couples, of which one was a minor, had to be separated. There were no exemptions and no individual assessments.

On this basis, the Ombudsman found already in 2017 that the press release constituted an unlawful instruction to the civil service. An initial case was brought by one of the separated couples yet after the Immigration Service resumed cases, in order to individually assess separations in April 2016, the Ombudsman closed the inquiry. He, instead, opened another inquiry of his own motion concerning the legality of the press release. The Ombudsman’s findings, which concerned the procedure rather than the outcome of individual cases, were confirmed by the Commission of Inquiry and the Impeachment Court.

Those looking for a detailed assessment of human rights law will look in vain. Only the Commission report provides an in-depth analysis of the European Court of Human Rights’ case-law and the practice of the Committee on the Rights of the Child (pp 545-577), which nine judges noted was somewhat vague (p 148).

Even so, a near unanimous majority of the Court of Impeachment (25 out of 26 judges). found that the press release could be regarded as an instruction to the civil service, which in effect barred it from conducting an individual assessment of each couple’s circumstances, as otherwise required by Danish administrative and human rights law. In this regard, the Court made a specific reference to Article 8 of the ECHR (right to respect for family), which is the only human rights instrument to have been implemented into Danish law.

The Court reiterated that any interference by a public authority to the right to respect for family life must be in accordance with the law, serve a legitimate aim and be proportional to that aim. This, according to the Court, requires an individual assessment based on adequate information involving the couple concerned. As the press release functioned as an instruction that did not allow for such an individual assessment, the Court found that Støjberg had: ‘…deliberately violated Section 5(1) of the Ministerial Responsibility Act by requiring the Immigration Service to administer contrary to the procedural requirements arising from Article 8 of the ECHR and from general administrative principles…’ (p 141).

Støjberg was sentenced to 60 days in prison. In determining the length of the sentence, 15 of the judges emphasised that Støjberg had gone ahead even though she had received ‘clear advice’ that her instruction would be contrary to the ECHR (p 144). Thus, disregard for the legal advice she received from her civil servants was a key determining factor in the sentencing.

No Right of Appeal. Strasbourg Next?

The custodial sentence is not suspended, but as it is less than six months Støjberg is eligible for electronic tagging. According to her lawyers, Støjberg has still to decide if she wants to apply for this substitute to imprisonment.

Parliament already voted for Støjberg to be suspended. According to s30 of the Danish Constitution, a person may lose their seat if they have been convicted of an act which ‘in the eyes of the public’ makes them ‘unworthy’. Worthiness is essentially a political decision, and there are few precedents.

Judgements by the Impeachment Court are not subject to appeal. Støjberg may therefore consider taking her case to the European Court of Human Rights (ECtHR). Since she has spent much of her career criticising human rights, it would seem somewhat hypocritical to bring her case to Strasbourg. Nor is she likely to succeed.

Another Danish minister was given a custodial sentence by the Impeachment Court in 1994, the former Minister of Justice, Erik Ninn-Hansen. This case also related to immigration and Ninn-Hansen received a four months’ sentence for unlawfully halting the reunification of Tamil refugee families during the Sri Lankan civil war. He made a litany of complaints to the ECtHR concerning Article 6 (right to a fair trial). Among others, he complained about the use of politically appointed judges. The ECtHR declared that: ‘Although political sympathies may play part in the process of appointment of lay judges… the Court does not consider that this alone gives legitimate doubts as to their independence and impartiality…’ (Appl no 28972/95).

Examining the process of the Impeachment Court, the ECtHR found no appearance of a breach of Article 6 with regards to independence, impartiality or the presumption of innocence and Ninn-Hansen’s case was declared inadmissible. There is no reason to believe that a complaint by Støjberg would fare any better.

A Broader Perspective: Immigration and Human Rights Law in Europe

The conviction of Støjberg has received a lot of international attention, and rightly so. It is not every day that a former minister is convicted for instructing civil servants to breach the rights of asylum seekers. The fact that the decision was almost unanimous, despite half the Court being politically selected, gives it added legitimacy.

Ironically, as in other countries, many Danish politicians have long been lamenting that the balance of power has tipped too far from politicians and towards unelected lawyers, whose views are allegedly out of kilter with voters. As I have written elsewhere, although the political discourse in various countries and much academic literature points to a major backlash against human rights, little data actually exists to support any such claim. Even so, in light of the political antagonism against human rights, it is increasingly important to understand the public’s views on human rights. And it is important, as Jan-Werner Müller warns, not to adopt populist narratives.

The effect of the judgment is yet to be seen. The fact that most political parties, including Støjberg’s own former party, are willing to vote her out of Parliament seems to suggest that this time the role of judges in the protection of democratic values have been widely accepted. The fact that Støjberg was convicted by a somewhat archaic procedure that can trace its origins to the first Danish constitution, also makes it difficult for detractors to make the usual populist arguments, viz that human rights are anti-democratic because they allow courts to encroach upon the place of national legislatures. That of course, will not prevent some from trying. But human rights did not play a crucial role in the Court’s finding. The real issue was that the executive did not follow the right procedure. An element of the rule of law, which is often overlooked.