Fighting for a Cause

On 18 October 2022, the European Court of Human Rights (‘ECtHR’ or ‘the Court’) handed down its judgement in the case of Mørck Jensen v. Denmark (Application no. 60785/19), upholding the applicant’s conviction under Danish law of breaching the prohibition on entry into and stay in a conflict zone in order to participate in armed hostilities on the side of one party to an ongoing armed conflict. In its judgment, the Court consciously opted to take an objective or neutral stance towards the question of whether there may exist ‘right’ reasons to travel to a hot conflict zone in order to actively participate in armed activities, while providing concerned States with a considerable margin of appreciation in enacting correspondent legislation.

The application, lodged with the Court under Article 34 of the European Convention on Human Rights (‘ECHR’), concerned the applicant’s conviction under Section 114j of the Danish Penal Code in conjunction with ‘Executive Order no. 1200 of 28 September 2016’ (‘2016 Executive Order’). The applicant, Mr Tommy Mørck Jensen, was thus found guilty to have entered and taken up residence in the al-Raqqa District of Syria without obtaining prior permission or demonstrating any legitimate purpose for his travels and subsequently sentenced to six months of imprisonment. While present in Syria, the applicant had been involved in armed activities against the so-called Islamic State (‘ISIL’), himself fighting for the Kurdish People’s Defence Unit Movement (‘YPG’ or ‘Peshmerga’). In his application, he turned against his conviction and sentence, submitting that both would constitute a breach of Article 7 ECHR and Article 2 of Protocol No. 4 to the Convention (‘Protocol’).

What Constitutes a ‘Right Cause’?

Pleading not guilty, the applicant conceded his stay in the region in order to support the cause of the YPG and claimed that he had considered the Kurdish areas to constitute an autonomous zone not covered by the aforementioned provisions. The District Court found the applicant guilty as charged and sentenced him to six months of imprisonment. On appeal, the High Court of Western Denmark upheld the applicant’s conviction, recalling that the prohibition of entering into and staying in the concerned region was sufficiently clearly described. Subsequently, the Danish Supreme Court assessed whether (1) the acts in question were punishable under Section 114j Danish Penal Code; (2) the underlying provision was described in a sufficiently clear manner and hence in compliance with Article 7 ECHR; (3) the applicant’s conviction constituted a breach of Article 2 Protocol; and (4) he should thus be acquitted since permission to enter into or stay in the concerned areas was no longer required due to a new ‘Executive Order no. 708 of 6 July 2019’ (‘2019 Executive Order’).

On 27 August 2019, the Supreme Court dismissed the applicant’s appeal, being satisfied that his entry into and stay in the al-Raqqa District fell within the scope of Section 114j(1) read with Section 114j(3) Danish Penal Code in conjunction with Section 1(1)(i) 2016 Executive Order – also in such constellations, in which the concerned individual had fought against a terrorist organization such as ISIL. The Supreme Court hence determined that the applicant’s conviction did not contravene Article 7 ECHR, given that the relevant provisions were accessible and foreseeable, while Section 1(1)(i) 2016 Executive Order specified the areas – including the al-Raqqa District – in which entering and staying was considered unlawful. Regarding Article 2 Protocol, the Supreme Court established that the scheme expounded by Section 114j Danish Penal Code was justified due to considerations of general importance, including national security; it likewise considered whether the applicant had to be acquitted under Section 3(1) Danish Penal Code, stipulating that the requirement of permission to enter into or stay in the concerned area had subsequently been repealed by the 2019 Executive Order. Those alterations, however, became operational only after the time of the original offence and were therefore deemed irrelevant to the issue of guilt, as the applicant’s actions had to be adjudicated upon on the basis of the law applicable at the time of the offence.

In his filing, the applicant complained that his conviction and sentencing constituted a breach of Article 7 ECHR, arguing that the Danish laws lacked foreseeability. Thus, Section 114j Danish Penal Code would not apply in situations like the present one, where the applicant – a Danish national – had joined a foreign allied organization in its fight against a terrorist group. Moreover, he claimed that the 2016 Executive Order had been lacking detail, making it impossible to ascertain which areas were subject to the prohibitions on entry and stay. Recalling its case-law – according to which it would be primarily up to national authorities to interpret and apply domestic law – the Court held that all domestic judicial bodies had determined that the law had been sufficiently clearly defined. The Court also engaged with the wording of Section 114j Danish Penal Code and its preparatory notes, clarifying that the section’s overall purpose had been to make it a criminal offence to enter into or stay in areas characterized by ongoing armed conflict and to join groups or associations parties to the conflict as purported under Section 114e Danish Penal Code. Hence, the respective purpose for the entry into or stay in the concerned areas was found to be irrelevant and moreover mirroring the legislator’s intention that also in such cases, in which the concerned individual had fought against terrorist organizations, participation was considered as a criminal activity and could hence not be perceived as a meritorious purpose justifying the grant of permission to enter into or stay in a prohibited area.

Speaking about Nullum Crimen Sine Lege

The Court could not establish any grounds on which to criticize the Danish courts’ findings and was satisfied that the offence was clearly defined, fulfilling the requirements of accessibility and foreseeability.. Regarding the applicability of the 2019 Executive Order, the Court reiterated that Article 7(1) ECHR guaranteed not only the principle of non-retroactivity, but also of nullum crimen sine lege. This question had already been addressed by the Danish Supreme Court, i.e. whether the applicant should be acquitted, provided that under the 2019 Executive Order there no longer existed any prohibition on entering into or staying in the al-Raqqa District. Accordingly, it followed that in cases in which criminal legislation in force at the time of adjudicating on a criminal act differed from legislation in force when the act had been committed, the degree of criminality would need to be assessed under the most recent statute, provided that the decision would not result in a more severe sentence. Moreover, the respective statute would no longer apply as a result from extrinsic circumstances irrelevant to the notion of individual guilt. Accordingly, it was submitted that the 2019 Executive Order did not revise the material purport of the sanctions set out in Section 114j Danish Penal Code and that, therefore, the culpability of individuals who had previously violated the prohibition of entry into or stay in the prohibited zones defined in the 2016 Executive Order had not been altered. In conclusion, the Supreme Court reasoned that the applicant’s activities had to be adjudicated based on the law applicable at the time of the offence and that, therefore, the punishment of the applicant was not in breach of Article 7 ECHR. The Court, noting that the present case differed from its established jurisprudence which regularly pertained to cases in which criminal law or procedure had been amended, rather than situations in which changes to factual circumstances had occurred, hence concurred with the determinations made by the Danish Supreme Court and did not establish a violation of Article 7 ECHR.

Also, the applicant claimed a breach of Article 2 Protocol, maintaining that the restriction of his entry into or stay in the al-Raqqa District had neither been in accordance with the law nor necessary in a democratic society. The Court clarified upon the guarantee that every person was free to leave any country – including their own – while noting that the provision did not directly address eventual restrictions of travelling to other countries. While the applicant was thus entitled to leave Denmark, with a view towards preventing his eventual participation in armed activities abroad, under Section 114j(1) read with Section 114j(3) Danish Penal Code in conjunction with Section 1(1)(i) of the 2016 Executive Order, he was prohibited from entering into and staying in the concerned area without obtaining prior authorization. The Court noted that said interference was in accordance with the law, pursued a legitimate aim as set out in Article 2(3) Protocol and thus necessary in a democratic society to achieve such an objective. In sum, the Court was satisfied insofar the interference with the applicant’s right to freedom of movement was fairly balanced against the public interests, so that no violation of Article 2 Protocol was found.

The European Court of Human Rights as an Indifferent Actor?

So, has the ECtHR now turned indifferent regarding the applicant’s purported motive, i.e. that the claimed to have joined the Peshmerga in their fight against ISIL? Has the Court retreated from taking a stance on what the ‘good’ or ‘right’ thing to do may be? Or does it even equate the Peshmerga’s armed struggle against ISIL and its overall fight for liberation with the activities of a terrorist organization? Of course, not!

What the ECtHR did in the present case – characterizing both the Peshmerga and the so-called Islamic State as groups actively participating in armed activities while not further differentiating their respective nature and objectives – resembles a positioning exercise: firstly, the Court underlined that States – such as Denmark – enjoy a considerable margin of appreciation in enacting legislation preventing their citizens or permanent residents from entering into and staying in certain clearly defined areas, in which armed activities take place, thereby barring these individuals from actively participating in such hostilities, as long the underlying law(s) were sufficiently foreseeable and accessible. Secondly, the judgment made a strong argument in favour of the State’s principal neutrality, preventing it from necessarily siding with either party to an armed conflict: while, in the present case, taking sides with the Peshmerga in their fight against a terrorist organization such as the so-called Islamic State, looms as the obvious choice, such a clear constellation may not be a default option. Hence, in cases, in which the ‘right cause’ may not be identified as clearly, by making the relevant provisions applicable in such a way that the support of neither party to the conflict serves a meritorious purpose, the judgment – in confirming the Danish position – puts the State in a neutral – critics may claim: apathetic – position, precluding the need for a case-by-case assessment of the factual circumstances of the conflict, including the parties’ objectives and intentions. Thirdly, and thereby further developing its previous jurisprudence on Article 7 ECHR and the principles of non-retroactivity and nullum crimen sine lege, the Court clarified that respective case-law had predominantly pertained to eventual amendments or alterations of criminal law and procedure, rather than to a change in factual circumstances. In the present case, the exclusion of a previously included geographical area in the newer 2019 Executive Order thus constituted a contextual rather than a legal alteration, which would otherwise possibly have given rise to a violation of Article 7 ECHR. This more qualified approach towards non-retroactivity and nullum crimen sine lege will surely have an impact on the Court’s future jurisprudence in similar case constellations.

In confirming the Danish courts’ reasonings, the present judgment provides States with a clear instrument for preventing their citizens and permanent residents to travel to active conflict theatres, thereby also countering  the phenomenon of foreign fighters participating in armed conflict abroad and subsequently returning to their respective home states. The State’s purported neutrality regarding each individual’s cause thus provides an objective positioning that aids States in assessing concrete situations without the imperative to engage in legal-political assessments of the underlying conflict situation or participating parties.