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Denmark: Supreme Court Upholds Conviction of Danish Citizen for Illegal Presence in Syria

(Sept. 18, 2019) On August 27, 2019, the Danish Supreme Court sentenced a Danish citizen for unlawful presence in al-Raqqa, Syria, while fighting against the Islamic State (ISIS). The Court thereby affirmed the appellate court decision, finding that the citizen’s presence violated section 114 j of the Danish Criminal Code. (Supreme Court Case No. 27/2019, Aug. 27, 2019.) The fact that he was fighting against ISIS was not considered extenuating circumstances.

Prohibition on Travel to and Presence in Conflict Areas

Section 114 j of the Criminal Code prohibits Danish citizens and residents from being present in conflict areas without the express prior authorization from Danish authorities, punishing offenders with monetary fines or imprisonment of up to six years. (Para. 1.)

Ministry of Justice Regulations Prohibiting Presence in Syria

On September 28, 2016, the Danish Ministry of Justice issued regulation BEK nr 1200 af 28/09/2016, which provided that certain areas of Syria and Iraq were designated as conflict areas, and traveling there would constitute a violation of section 114 j of the Criminal Code. Specifically, the 2016 regulation prohibited travel to and presence in (1) Syria’s al-Bab District of Aleppo Province, al-Thawrah and al-Raqqa Districts in al-Raqqa Province, and Dayr al-Zawr Province, and (2) Iraq’s Mosul District in Ninawa Province. Only those exercising “Danish, foreign, or international public service or duties” were exempted. (BEK nr 1200, § 1, stk. 1, 2.)

On July 11, 2019, a new regulation, BEK nr. 708 af 06/07/2019, took effect, repealing BEK nr 1200 of 2016 and removing al-Raqqa from the updated list of prohibited places, consisting of Dayr al-Zawr and Idlib Provinces in Syria. The removal of al-Raqqa from the list does not exculpate any previous violations, however.

Background of the Court Case

“T” travelled to al-Raqqa on up to 25 occasions to fight for the Kurdish YPG militia against ISIS between 2016 and 2017. Following the publication of a newspaper article about T’s presence in al-Raqqa, T was questioned by the Danish authorities and prosecuted under § 114 j of the Criminal Code. The district court convicted him and sentenced him to six months’ imprisonment. The court of appeals affirmed the lower court’s verdict, specifically noting that T’s involvement with the YPG was not an extenuating but an aggravating factor, as he had participated in armed conflict in a designated conflict zone. After the appeals court’s verdict had been issued, the Danish authorities repealed the 2016 regulation that prohibited staying in al-Raqqa because ISIS had been defeated and the security situation in the area had improved.

Supreme Court Verdict and Reasoning

The question before the Supreme Court was whether T could still be sentenced under the original regulation even though it was no longer in force. Evidentiary issues such as the GPS positioning of his cellphone and whether T legitimately thought he was covered by the exemption in section 114 j, paragraph 2, were not part of the Supreme Court’s review. (Supreme Court Case No. 27/2019.)

Instead the Court had to determine whether the section 114 j provision violated the right to freedom of movement as guaranteed in article 2 of Protocol No. 4 of the European Convention on Human Rights, and whether the repeal of the 2016 regulation constituted a violation of article 7 of the Convention, which provides as follows:

  1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
  2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

The Court found that the repeal of the 2016 regulation did not preempt the conviction of T, and that his conviction did not violate article 7 of the Convention, as paragraph 2 specifically provides that the protection does not preempt a person from being sentenced for an action that was a crime when it was carried out. The Court thus reaffirmed the court of appeals decision and sentenced T to six months’ imprisonment. (Supr. Ct. Case at 31.)

Supreme Court Sentencing

A minority of the Supreme Court argued that T should be sentenced to three months’ imprisonment conditioned on a one-year probation period in recognition of the importance of the YPG’s efforts in defeating ISIS. (Id. at 30.)

The majority found, however, that the legislative history of section 114 j of the Criminal Code provided no legal basis for such leniency, noting that the provision had been purposefully drafted to make it easier to prosecute (and deter) terrorists by requiring only that the prosecutor prove that the person was in the prohibited area. (Id. at 29.)

T has stated that he will bring the case before the European Court of Human Rights, arguing that not only does the law violate both article 7 of the Convention and article 2 of Protocol No. 4 on “Freedom of Movement,” but it merits challenging for political reasons in that the law is “absurd.” So far, T is the only person to be prosecuted under section 114 j.