Information Note on the Court’s case-law
October 2022
Mørck Jensen v. Denmark - 60785/19
Judgment 18.10.2022 [Section II]
Article 7
Article 7-1
Nullum crimen sine lege
Conviction for breach of the prohibition on entry and stay in a specific conflict zone, which was lifted at the time of the adjudication of the case following a change in the situation in that zone: no violation
Article 2 of Protocol No. 4
Article 2 para. 1 of Protocol No. 4
Freedom of movement
Danish national prohibited from entering and staying, without permission, in areas in which a terrorist organisation is a party to an ongoing armed conflict (the al-Raqqa district in Syria): no violation
Facts – While in Syria in 2016/2017, the applicant engaged in armed combat against the terrorist organisation Islamic State (IS) for the Kurdish movement YPG. By a final Supreme Court judgment of 27 August 2019, he was convicted and sentenced to 6 months’ imprisonment for having entered and taken up residence in the al-Raqqa district in Syria without permission from the police and without any legitimate purpose. His conviction was based on section 114j of the Penal Code, read with section 114j (3) of the Penal Code, and section 1(1)(i) of the Executive Order no. 1200 of 28 September 2016 (2016 Executive Order), Prohibiting the Entry into or Stay in Certain Conflict Zones. Subsequently, by virtue of the Executive Order No. 708 of 6 July 2019 (2019 Executive Order), the prohibition on entering or staying in the al-Raqqa District of Syria without permission was lifted. Before the Court the applicant complained that his conviction and sentence had been in breach of Article 7 of the Convention and of Article 2 of Protocol No. 4.
Merits – Article 7:
(a) Whether the applicant’s conviction was in accordance with the law – All the judicial bodies had found that the law had been sufficiently clearly set out in the relevant provisions. They had examined the wording of section 114j of the Penal Code and the preparatory notes, according to which the overall purpose of this section had been to make it a criminal offence to enter or stay in the areas concerned. The purpose of the entry or stay had been therefore irrelevant. It had been therefore also the intention to make it a criminal offence where the relevant person had fought against a terrorist organisation. This had been clearly expressed in the notes on the scheme of permissions stating that no entry and stay to take part in an armed conflict or to support either party to the armed conflict would serve a meritorious purpose that could justify the grant of permission to enter and stay in a prohibited zone. The domestic courts had also found that it had been sufficiently clear from the 2016 Executive Order, including the attached map, that it had been unlawful to enter and stay in the al-Raqqa District without permission.
The Court could not find any grounds on which to criticise the domestic courts’ finding in that respect. It was satisfied that the offence had been clearly defined in the law and had fulfilled the requirements of accessibility and foreseeability.
Conclusion: no violation (unanimously).
(b) Whether the applicant should have been acquitted because the 2019 Executive Order no longer included the al-Raqqa District – The Supreme Court had examined whether, by virtue of section 3(1) of the Penal Code, the applicant should be acquitted, since under the 2019 Executive Order, which had come into force in July 2019, there had been no longer any prohibition on entering or staying in the al-Raqqa District of Syria without permission. It followed from section 3(1) that where the criminal legislation in force at the time of the adjudication of a criminal act differed from the legislation in force when the act had been committed, the issue of criminality had to be decided under the most recent statute, provided that the decision did not result in a more severe sentence than the sentence imposable under the former statute. If the statute no longer applied as a result of extrinsic circumstances irrelevant to the issue of guilt, the criminal act had to be adjudicated under the former statute.
The Supreme Court had found that the applicant’s actions had to be adjudicated on the basis of the criminal law applicable at the time of the offence. The 2019 Executive Order did not revise the scope of the sanctions set out in the relevant of the Penal Code. Nor did not redefine the culpability of persons who had violated the prohibition on entry into and stay in the prohibited zones listed in the 2016 Executive Order without permission. The repeal of the 2016 Executive Order was attributable only to extrinsic circumstances resulting from specific changes in the situation in Syria that had occurred after the time of the offence and were thus irrelevant to the issue of guilt.
The present case significantly differed from the Court’s previous case-law on the principle of the retroactivity of the more lenient criminal law. It had found a violation in cases where the criminal law or the criminal procedure had been amended (Scoppola v. Italy (no. 2) [GC]), or where the domestic courts had subsequently exercised their judicial discretion in an expansive manner by adopting an interpretation that had been inconsistent with both prevailing national jurisprudence and the essence of the offence as defined by the national law (Parmak and Bakır v. Turkey). In the present case, however, the Penal Code and procedure had remained unchanged. The amendment in the 2019 Executive Order only related to changed factual circumstances that had occurred after the time of the offence, resulting from specific changes in the situation in Syria. It was thus unrelated to the assessment of the criminal act committed in 2016/2017.
The Court saw no reason to call into question the Supreme Courts’ finding that the applicant’s actions had to be adjudicated on the basis of the criminal law applicable at the time of the offence, in accordance with the second sentence of section 3(1) of the Penal Code.
Conclusion: no violation (unanimously).
Article 2 of Protocol No. 4:
The applicant had been free to leave Denmark. However, in the context of preventing participation in armed conflicts abroad, he had been, as a Danish national, prohibited from entering and staying in the al-Raqqa district in Syria without permission by the Danish State.
In respect of lawfulness, the Court referred to its findings under Article 7. The interference had pursued the legitimate aims of national security, public safety and prevention of crime.
The Supreme Court had carefully examined the case under Article 2 of Protocol No. 4 and, after carrying out the requisite balancing exercise in the light of the Convention principles, had found that the restriction on the applicant’s freedom of movement had been proportionate, notably since the al-Raqqa district had been of a limited size and the applicant could have obtained permission to enter and stay there if he had had a meritorious purpose.
The quality of the judicial review of the disputed general measure and its application in the present case militated in favour of a wide margin of appreciation.
In addition, the restriction only concerned areas in which a terrorist organisation was a party to an ongoing armed conflict. Moreover, the prohibition on entry and stay without permission was not absolute as persons performing a public function or office with a Danish, foreign or international organisation were explicitly exempted from the provision. Furthermore, the relevant zones had been revised carefully on an ongoing basis, and the al-Raqqa district had been therefore not included in the subsequent 2019 Executive Order. Lastly, the restriction had served the purpose of ensuring that persons who had been Danish nationals or habitually resident within the Danish State had not independently joined any of the parties to the ongoing armed conflict and had posed a threat to the society upon their return to Denmark.
In those circumstances, the interference with the applicant’s right to freedom of movement had struck a fair balance between the public interest and the rights of the individual.
Conclusion: no violation (unanimously).
(See also Scoppola v. Italy (no. 2) [GC], 10249/03, 17 September 2009, Legal Summary; Parmak and Bakır v. Turkey, 22429/07 and 25195/07, 3 December 2019, Legal summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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