Conviction of a Danish national who entered a restricted area during the Syrian civil war. No violation of freedom of movement
JUDGMENT
Mørck Jensen v. Denmark 18.10.2022 (app. no. 60785/19)
SUMMARY
The case concerned a Danish citizen’s conviction for a stay in a conflict zone in an area of Syria
where the Danish State had restricted travel.
The Court found in particular that the conviction had been in accordance with the relevant law,
which had been very clearly drawn up, and it saw no reason not to try and convict the applicant on
the law that had been applicable at the time of the offence. Furthermore, the applicant’s having
been free to leave Denmark and enter Syria, but not this narrow restricted zone, meant that the
domestic authorities had balanced his rights with the needs of the community as a whole.
PRINCIPAL FACTS
The applicant, Tommy Mørck Jensen, is a Danish national who was born in 1978 and lives in Aarhus
(Denmark).
In 2017 Mr Mørck Jensen stated during a radio interview that he had been on the front line in the
village of Tal Saman/Tal Elsamen in the al-Raqqa District in early January 2017 in the Syrian Civil War.
The police initiated an investigation.
As a result, in 2019 he was charged with a breach of the Penal Code and with Prohibiting the Entry
into and Stay in Certain Conflict Zones under an executive order, specifically for having stayed in Ayn
Issa without permission from the police or a meritorious purpose. There he was believed to have
fought in the armed conflict against the Islamic State with the People’s Defence Units (Yekîneyên
Parastina Gel). He pled not guilty, arguing that he had been in the area to support Kurdish
autonomy. He gave details of his activities there and the combat seen. He stated that he had been
ignorant of the relevant law under which he was accused.
The District Court found him guilty as charged. He received a six-month prison sentence.
The High Court upheld that judgment, adding that the restriction on the applicant’s freedom of
movement had not constituted a violation of his rights under Article 2 of Protocol No. 4 to the
Convention.
The Supreme Court also found against the applicant on appeal in August 2019, considering that the
conviction had not contravened Article 7 of the Convention, and that the relevant law had been clear and the consequences foreseeable. It noted the repeal of the relevant provisions of the
executive order in 2019, but held that the repeal did not alter the guilt of individuals who had gone
into the restricted zone before that point. In its reasoning it referred to the Court’s case-law and to
European Union law. The sentence was also upheld.
THE DECISION OF THE COURT…
Article 7
The Court noted that the domestic courts had found the relevant law clearly set out. It had provided
that entry into a listed area with an armed conflict was an offence, no matter which party had been
supported. The purpose of the entry or stay had been irrelevant. An explanatory map including the
al-Raqqa District was attached. The Court found therefore that Mr Mørck Jensen’s conviction had
been in accordance with the law.
Concerning the later repeal of the law, the Supreme Court had found that his actions had had to be
adjudicated on the basis of the criminal law applicable at the time of the offence. With reference to
the Court’s case-law, it held that that punishment for the offence had not been contrary to Article 7.
The Court noted that, unlike in similar previous cases, the relevant law (the Penal Code) and
procedure had remained unchanged and agreed with the domestic authorities that the applicable
law was that of the time of the offence.
Overall, the Court ruled that there had no violation of Article 7 of the Convention.
Article 2 of Protocol No. 4
Mr Mørck Jensen argued that the restriction on his entry into and stay in the al-Raqqa District had
neither been in accordance with the law nor necessary in a democratic society.
The Court reiterated that Article 2 of Protocol No. 4 meant that people were free to leave any
country, including their own, implying a right to travel.
The applicant had had the right to leave Denmark and travel to Syria, but the Court reiterated its
ruling that the restrictions on travelling to the al-Raqqa District had been lawful. He could have
applied to the State for permission to go there had he had a legitimate reason for doing so. The
restrictions had only applied to areas where there had been terrorist activity, with the purpose of
ensuring that individuals connected to Denmark would not take part in the conflict.
The domestic courts had carefully balanced the rights of the applicant and the needs of society as a
whole, and the restriction had been in the public interest. There had been no violation of Article 2 of
Protocol No. 4 to the Convention.
