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Sweden: Court Rejects Charge of Terrorism Travel; Government Proposes Tighter Legislation

(Jan. 11, 2017) On December 9, 2016, the Svea Court of Appeals in Sweden dismissed a charge of terrorism travel against a Swedish national, reaffirming a lower court decision to clear the defendant of that charge on grounds of insufficient evidence. (Press Release, Svea Court of Appeals, Svea hovrätt frikänner i ett mål om resa i terrorismsyfte [Svea Court of Appeals Acquits in Case of Travel with Terrorist Intent] (Dec. 9, 2016); Case B 6344-16, Svea Court of Appeals (Dec. 9, 2016) (SVEA HOVR) (in Swedish) (on file with author).)

Terrorist Travel Law

In 2010, Sweden implemented a new law that made travel with the intent of committing terror crimes a criminal offense punishable with up to two years’ imprisonment. (Lag om straff för offentlig uppmaning, rekrytering och utbildning avseende terroristbrott och annan särskilt allvarlig brottslighet (Rekryteringslagen [Recruitment Act]) (Svensk författningssamling [SFS] 2010:299), RIKSDAGEN.) In 2013, the offense was further defined in the Law on Punishment of Terrorism Crimes. (Lagen om Straff for Terrorismbrott [Law on Punishment of Terrorism Crimes] (SFS 2003:148), RIKSDAGEN.)

The law provides: “[a]nyone who travels to or embarks for  travel to a country other than that where he or she is a citizen with the intent of 1) committing extraordinarily serious crimes or 2) informing of or receiving instructions in accordance with 5§ or 5a§” will be sentenced to two years in prison upon conviction.  (5b§  Recruitment Act.)  What constitutes terrorist crimes is defined in section 3 of the Law on Punishment of Terrorism Crimes, but the crime of terrorism travel also includes intent to commit other extraordinary serious criminal activity.  Terrorism crimes include:  murder, manslaughter, aggravated assault, kidnapping, arson and aggravated arson, destruction causing public endangerment, hijacking of ships and airplanes, sabotage, illegal use of chemical weapons, crimes against weapons laws, unlawful threats, and crimes of a similar nature.  (3§ Law on Punishment of Terrorism Crimes.)

Facts of the Case

In the case at hand, a young man had traveled from Sweden to Turkey in an attempt to reach Syria.  The prosecution accused him of doing so with the intent of joining the group Jabhat al-Nusra, classified by the United Nations as a terrorist group, to commit terrorist crimes.  (SVEA HOVR, at 4.)  The accused denied any criminal intent connected with his travel, arguing instead that he had gone to Syria to teach English to children in refugee camps in Jabhat al-Nusra-controlled areas.  (Id.)

The Svea Court of Appeal found that there was evidence of the accused’s support of Jabhat al-Nusra, in the form of documents, photos, and videos found in his laptop and cellphone. (SVEA HOVR, at 4-5.)  He had also told his girlfriend shortly before travelling that he was going on a jihad and had told a friend as much in a Facebook conversation.  (Id. at 5.)  Very little interest in refugees could be evidenced from his search history or documents.  (Id. at 4.)  The Court found that he planned to join the group, but also determined that there was insufficient evidence presented to show that he also intended to commit terrorist crimes.  (Id. at 5.)

The Svea Court of Appeal based its interpretation of what constituted criminal intent in Swedish law and on the text of United Nations Security Council Resolution 2178 of 2014, specifically the language “the purpose of,” which stated that the purpose of the travel should be to commit terrorism acts. (Id. at 3; see also S.E.C. Res., ¶ 5, U.N. Doc. S/RES/2174 (Sept. 24, 2014), U.N. website.)  The deciding factor for guilt, according to the Court, was therefore the intent of the person to commit terrorist crimes, not whether the person merely intended to join the group.  (SVEA HOVR, at 3.)  The Court did not specify the form of evidence that would need to be presented in order to convict the accused of “terrorism travel.”  As of 2016, there had been no convictions for terrorism travel under the new Recruitment Act.

Stricter Laws Proposed

The Swedish Government has indicated an intent to tighten the Recruitment Act and the Law on Punishment of Terrorism Crimes. On June 14, 2016, a government report was issued recommending further criminalization of support for terrorist groups, by making the mere joining of a terror group sufficient grounds for terrorist crimes.  Under legislation proposed by the report, it would make no difference if the person joining a terror group actively committed murder or in other ways facilitated and aided those who did.  (Straffrättsliga åtgärder mot deltagande i en väpnad konflikt till stöd för en terroristorganisation [Criminal Measures Against Participation in Violent Conflict in Support of a Terrorist Organization], Statens Offentliga Utredningar (SOU) [Government Report] 2016:40, REGERINGEN (Government Offices of Sweden website) (June 15, 2016).) The government proposed the measures in legislation submitted to the Swedish Parliament on December 17.  (Ett särskilt straffansvar för resor i terrorismsyfte [Special Criminal Liability for Terrorism Travel], Proposition 2015/16:78, REGERINGEN). It has yet to be voted on in the Parliament.