Violation of entry and residence ban

Case no. 27/2019
Judgment delivered on 27 August 2019

The Prosecution Service
vs.
T

The High Court found T guilty of violation of section 114 j of the Danish Penal Code for having entered and taken up residence in the al-Raqqa district in the Raqqa province in Syria up to 25 times without permission from the police and without any legitimate purpose. 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 Section 114 j, it also applies to cases such as this where the accused has been fighting against a terrorist organisation. Against this background, the Supreme Court agreed that T’s actions were punishable under Section 114 j 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 convicting T was not in breach of the no punishment without law requirement in Article 7 of the European Human Rights Convention, just as it was not contrary to Article 2 (freedom of movement and residence) in 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 he was 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. T’s actions should therefore be assessed on the basis of the penal code in force at the time of the crime. The Supreme Court found that neither Article 7 of the European Human Rights Convention nor Article 49(1), third sentence, of the EU Charter of Fundamental Rights – if the Charter applied to this case – could be considered to prevent T from being convicted for the violation of Section 114 j of the Penal Code of which he had been found guilty.

The Supreme Court found no basis for changing the punishment of imprisonment for six months.