Published on 7 June 2021

SECOND SECTION

Application no. 60785/19 Tommy MØRCK JENSEN against Denmark lodged on 15 November 2019 communicated on 18 May 2021

SUBJECT MATTER OF THE CASE

By a final Supreme Court judgment of 27 August 2019 the applicant was convicted of the offence under Article 114 j of the Penal Code for having entered and taken up residence in the al-Raqqa district in the Raqqa province in Syria up to 25 times, during the period from November 2016 to Match 2017, without permission from the police and without any legitimate purpose. The applicant was sentenced to imprisonment for 6 months.

While in Syria, he engaged in armed combat against the terrorist organisation Islamic State for the Kurdish movement YPG on several occasions.

The Supreme Court held that, according to the wording of and legislative history behind Article 114 j, it also applied to cases such as the present where the accused had been fighting against a terrorist organisation. Against that background, the Supreme Court agreed that the applicant’s actions were punishable under the said provision read with the executive order prohibiting entry or residence in certain areas of conflict which was in force at the time.

The Supreme Court also found that the conviction would not be in breach of Article 7 of the Convention or of Article 2 of Protocol No. 4 to the Convention.

Finally, the Supreme Court held that the fact that there was no longer a requirement for permission for entry and residence in the area which the applicant had been convicted of having stayed in could not lead to his acquittal. The abolition of the then applicable executive order – as a result of the changed circumstances in Syria after the time of the crime – was based on external factors that had no relevance to the question of guilt in this case. The applicant’s actions should therefore be assessed on the basis of the penal code in force at the time of the crime.

Before the Court the applicant complains that the offence under Article 114j of the Penal Code, and therefore his conviction and sentence, was in breach of Article 7 of the Convention and of Article 2 of Protocol No. 4 to the Convention.

QUESTIONS TO THE PARTIES

1. Was the applicant’s conviction and sentence, which became final by the Supreme Court’s judgment of 27 August 2019, in breach of Article 7 of the Convention (see, for example, Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 105 -109, 17 September)?

2. Was it in breach of Article 2, § 2 of Protocol No. 4 to the Convention (see, mutatis mutandis , inter alia , Kerimli v. Azerbaijan , no. 3967/09, § 45, 16 July 2015)?