Michael de Laine

‘Tolerated stay’ with mandatory overnight stay really means imprisonment, say activists

By Michael de Laine, Copenhagen 25 February 2009

The implementation of a new law means that the people subjected to the law are virtually imprisoned in an asylum centre. The law also contravenes the fundamental principles of states governed by laws, Denmark’s own constitution and the European Declaration of Human Rights.

The implementation this week of a law passed at the end of December 2008 not only means that the people subjected to the law are virtually imprisoned in an asylum centre, but also that Denmark contravenes the fundamental principles of states governed by laws, the country’s own constitution and the European Declaration of Human Rights, claims a newly formed group of activists called Netværk imod Utåleligt Ophold.

The activist network, which takes its name from the status of the people sentenced by courts to ‘tålt ophold/tolerated stay’, says the law contravenes the European human rights declaration because it deals a group of people grave intrusions into their freedom of movement and their right to family and private life.

According to the network, the law was adopted in haste and with a very small majority. It requires people sentenced under it to report to the police several times a week, if not every day, and forces them to spend each night at the Sandholm asylum centre, north of Copenhagen.

People sentenced to ‘tolerated stay’ do not have the right to work or an education, nor may they marry. They are stripped of nearly all of their civil rights, and their daily obligation to report to the authorities means they are deprived of their freedom, according to Henning Koch, Professor of Constitutional Law at the University of Copenhagen. Koch has commented on the new law seen in the light of the Danish constitution’s paragraph 71 about personal liberty.

The first of the seven clauses of paragraph 71 states: “Personal liberty shall be inviolable. No Danish subject shall, in any manner whatsoever, be deprived of his liberty because of his political or religious convictions or because of his descent.”

Clause 6 states: “Outside criminal procedure, the legality of deprivation of liberty not executed by order of a judicial authority, and not warranted by legislation relating to aliens, shall at the request of the person so deprived of his liberty, or the request of any person acting on his behalf, be brought before the ordinary courts of justice or other judicial authority for decision. Rules governing this procedure shall be provided by statute.”

According to the network, “The requirement to report daily to the police and spend the night at Sandholm, taken together with a number of other harassing initiatives, makes life for the people sentenced to ‘tolerated stay’ intolerable.”

“Forcing people to spend the night at the Sandholm asylum centre is very reminiscent of what we today call an open prison,” the activists add.

The network says that the majority of the people living under the ‘tolerated stay’ rules have already served a prison sentence and thus serve a second punishment.

“We aren’t afraid of Danes who have served their sentence,” the activists say, “so why are people on ‘tolerated stay’ dangerous?”

‘Tolerated stay’ applies to people who do not have Danish citizenship, but many of them have lived in Denmark for years, the network points out.

“This is discriminatory double punishment and the main purpose of it is to make life so trying for these people that they decide to leave the country,” the activists say.

What all people on ‘tolerated stay’ have in common is that they cannot be deported to the countries where they are citizens because they risk being tortured, persecuted and the like. This is a part of the United Nations’ convention of refugees that Denmark has ratified.

“The problem is that they cannot travel to a third country, as no country wants to receive people who have been rejected by any country,” the network adds. “As ‘tolerated stay’ does not have a time limit, these people are in reality sentenced to spend the rest of their lives under ‘tolerated stay’ conditions in Denmark.”

There is no prospect that the political situation in the various countries of origin changing in the foreseeable future, according to the activists.

“These people are sentenced to remain in Denmark and must report every day to the police and must spend every night at the Sandholm asylum camp,” says Netværk imod Utåleligt Ophold. “They have no right to work, to education, etc. These conditions are permanent. They are therefore in no man’s land for an indefinite period.”