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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Denmark: Supreme Court Upholds Conviction of Danish Citizen for Illegal Presence in Syria

(Sept. 18, 2019) On August 27, 2019, the Danish Supreme Court sentenced a Danish citizen for unlawful presence in al-Raqqa, Syria, while fighting against the Islamic State (ISIS). The Court thereby affirmed the appellate court decision, finding that the citizen’s presence violated section 114 j of the Danish Criminal Code. (Supreme Court Case No. 27/2019, Aug. 27, 2019.) The fact that he was fighting against ISIS was not considered extenuating circumstances.

Prohibition on Travel to and Presence in Conflict Areas

Section 114 j of the Criminal Code prohibits Danish citizens and residents from being present in conflict areas without the express prior authorization from Danish authorities, punishing offenders with monetary fines or imprisonment of up to six years. (Para. 1.)

Ministry of Justice Regulations Prohibiting Presence in Syria

On September 28, 2016, the Danish Ministry of Justice issued regulation BEK nr 1200 af 28/09/2016, which provided that certain areas of Syria and Iraq were designated as conflict areas, and traveling there would constitute a violation of section 114 j of the Criminal Code. Specifically, the 2016 regulation prohibited travel to and presence in (1) Syria’s al-Bab District of Aleppo Province, al-Thawrah and al-Raqqa Districts in al-Raqqa Province, and Dayr al-Zawr Province, and (2) Iraq’s Mosul District in Ninawa Province. Only those exercising “Danish, foreign, or international public service or duties” were exempted. (BEK nr 1200, § 1, stk. 1, 2.)

On July 11, 2019, a new regulation, BEK nr. 708 af 06/07/2019, took effect, repealing BEK nr 1200 of 2016 and removing al-Raqqa from the updated list of prohibited places, consisting of Dayr al-Zawr and Idlib Provinces in Syria. The removal of al-Raqqa from the list does not exculpate any previous violations, however.

Background of the Court Case

“T” travelled to al-Raqqa on up to 25 occasions to fight for the Kurdish YPG militia against ISIS between 2016 and 2017. Following the publication of a newspaper article about T’s presence in al-Raqqa, T was questioned by the Danish authorities and prosecuted under § 114 j of the Criminal Code. The district court convicted him and sentenced him to six months’ imprisonment. The court of appeals affirmed the lower court’s verdict, specifically noting that T’s involvement with the YPG was not an extenuating but an aggravating factor, as he had participated in armed conflict in a designated conflict zone. After the appeals court’s verdict had been issued, the Danish authorities repealed the 2016 regulation that prohibited staying in al-Raqqa because ISIS had been defeated and the security situation in the area had improved.

Supreme Court Verdict and Reasoning

The question before the Supreme Court was whether T could still be sentenced under the original regulation even though it was no longer in force. Evidentiary issues such as the GPS positioning of his cellphone and whether T legitimately thought he was covered by the exemption in section 114 j, paragraph 2, were not part of the Supreme Court’s review. (Supreme Court Case No. 27/2019.)

Instead the Court had to determine whether the section 114 j provision violated the right to freedom of movement as guaranteed in article 2 of Protocol No. 4 of the European Convention on Human Rights, and whether the repeal of the 2016 regulation constituted a violation of article 7 of the Convention, which provides as follows:

  1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
  2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

The Court found that the repeal of the 2016 regulation did not preempt the conviction of T, and that his conviction did not violate article 7 of the Convention, as paragraph 2 specifically provides that the protection does not preempt a person from being sentenced for an action that was a crime when it was carried out. The Court thus reaffirmed the court of appeals decision and sentenced T to six months’ imprisonment. (Supr. Ct. Case at 31.)

Supreme Court Sentencing

A minority of the Supreme Court argued that T should be sentenced to three months’ imprisonment conditioned on a one-year probation period in recognition of the importance of the YPG’s efforts in defeating ISIS. (Id. at 30.)

The majority found, however, that the legislative history of section 114 j of the Criminal Code provided no legal basis for such leniency, noting that the provision had been purposefully drafted to make it easier to prosecute (and deter) terrorists by requiring only that the prosecutor prove that the person was in the prohibited area. (Id. at 29.)

T has stated that he will bring the case before the European Court of Human Rights, arguing that not only does the law violate both article 7 of the Convention and article 2 of Protocol No. 4 on “Freedom of Movement,” but it merits challenging for political reasons in that the law is “absurd.” So far, T is the only person to be prosecuted under section 114 j.

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United States: The Constitution, Annotated: The Constitution Explained in Plain English

(Sept. 17, 2019) To celebrate this year’s Constitution Day, the Library of Congress is launching the Constitution Annotated, a website that provides online access to a massive Senate document that has served for more than a century as the official record of the US Constitution.

Previously, the Constitution Annotated—full name, “Constitution of the United States of America: Analysis and Interpretation”—has primarily existed as a 3,000-page hardbound volume provided to Congressional members. It explains in layman’s terms the Constitution’s origins, how the nation’s most important law was crafted and ratified, and how every provision in the Constitution has been interpreted. It has also been available on congress.gov.

But the new website, with advanced search tools, makes this important resource more accessible to an online audience. The Constitution Annotated is prepared by attorneys at the American Law Division of the Library’s Congressional Research Service. It conforms to the CRS standard of objective, authoritative, and nonpartisan analysis.

“To be successful, collections must be used. That’s why I’m excited about the Constitution Annotated getting a new website. It’s a great example of what we mean when we say we’re putting our users first,” said Librarian of Congress Carla Hayden. “We’ve taken some of the most comprehensive analysis of our Constitution—the laws that make America what it is—and we’re making them easier for everyone to use.”

The website is the latest step in the volume’s evolution. Congressional manuals in the 19th century included the earliest version of the Constitution Annotated—an indexed Constitution, the provisions of which were later annotated with lists of judicial decisions. When these lists became unwieldy, subsequent editions provided analysis of judicial interpretations of the Constitution, resulting in the volume’s current 3,000-page length.

The website brings the Constitution Annotated into the 21st century with Boolean search capabilities, case law links, browse navigation, and related resources. Reflecting that the Constitution Annotated is not only a historical record but also an analysis of current constitutional understandings, the new website enables CRS attorneys to apprise Congress and the public of legal developments quickly.

By making the document fully searchable and readily accessible online, the new website allows the public to study the Constitution easily, providing a key resource for legal scholars, lawyers, journalists, high school teachers, and anyone interested in the foundational law of the nation. The website will also be an important educational resource for students.

Prepared with the assistance of the Congressional Research Service staff.

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International: Botswana, Canada Ratify Arms Trade Treaty

(Sept. 17, 2019) In June 2019, Canada and Botswana each ratified the United Nations’ Arms Trade Treaty (ATT), becoming the 103rd and 104th states to join the ATT. The ATT will enter into force for Botswana and Canada in September 2019, 90 days after their ratifications. Botswana will become the 26th African country to join the ATT.

By ratifying the ATT, both Canada and Botswana must take domestic measures to monitor the international transfer of arms.

Background of ATT

The ATT entered into force on December 24, 2014, with the goal of bringing accountability and transparency to the global arms trade. The United States initially supported and actively participated in the negotiations on the treaty. However, the current US administration has indicated it opposes its ratification.

The ATT’s adoption was generally welcomed internationally, as before its existence, the international trade in conventional arms was largely unregulated in comparison with other goods. For instance, the World Trade Organization explicitly exempts the transfer of arms from the scope of its regulation.

ATT at a Glance

 The novel provisions of the ATT include the following:

  • The requirement that state parties establish and maintain national control systems to monitor the transfer of conventional arms
  • The prohibition of transferring arms to states if the transfer would violate “obligations under measures adopted by the United Nations Security Council acting under Chapter VII of the Charter of the United Nations, in particular arms embargoes” or under other “relevant international obligations,” or if the state “has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes”

Years of sometimes contentious discussions preceded the ATT’s entry into force. The United Nations General Assembly marked official discussion of a multilateral instrument to regulate the trade in conventional arms in 2006 with Resolution 61/81, which stated that “the absence of common international standards on the import, export and transfer of conventional arms is a contributory factor to conflict, the displacement of people, crime and terrorism, thereby undermining peace, reconciliation, safety, security, stability and sustainable development.”

Prior to the signing of the ATT, Ban Ki Moon noted in his remarks to the Conference on the Arms Trade Treaty that

[t]he world is overarmed and peace is underfunded. Military spending is on the rise. Today, it is well above $1 trillion a year. Let us look at Africa alone. Between 1990 and 2005, 23 African countries lost an estimated $284 billion as a result of armed conflicts, fuelled by transfers of ammunition and arms—95 per cent of which came from outside Africa. And globally, 60 years of United Nations peacekeeping operations have cost less than six weeks of current military spending.

Developing countries continue to be the focus of studies on international arms sales, as arms trade agreements between developed and developing countries made up 86% of all the arms transfer agreements as of 2014, with an annual value of approximately $62 billion.

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Turkey: Court of Cassation Ruling Clarifies ‘Appeal in the Interest of Law’ Procedure

(Sept. 16, 2019) On February 14, 2019, the 11th Civil Chamber of the Turkish Court of Cassation issued a judgment clarifying the extraordinary appeal procedure “appeal in the interest of law” (kanun yararina temyiz). The judgment was published in the Official Gazette on August 22, 2019.

“Appeal in the interest of law” is a procedure provided in article 363 of the Civil Procedure Code (CPC, Law No. 6100 [2011]). According to this procedure, decisions of first instance courts and regional courts that are unappealable or were finalized without being appealed by the parties can be appealed by the Office of the Chief Prosecutor of the Court of Cassation, or the Ministry of Justice itself, on the grounds that the judgment is in violation of current law. In contrast with an ordinary appeal, however, a successful appeal in the interest of the law does not have legal effect on the dispute between the parties. (Art. 363(2).)

The judgment of the 11th Civil Chamber concerns the implications of decisions that were finalized without being appealed by the parties. In 2016, the court of first instance of Kahta in Adiyaman Province had issued a ruling in a dispute concerning a low-value commercial credit agreement based on the new Law of Obligations (2011) instead of the repealed Law of Obligations (1926), which was in force during formation of the contract in 2008. The decision of the Kahta court was unappealable due to its low value, so the decision of the court constituted a final decision. The decision was appealed in the interest of the law by the chief prosecutor on the grounds of the incorrect application of the law.

Upholding the chief prosecutor’s appeal, the 11th Civil Chamber reversed the decision of the Kahta court and returned the case file to the court to be archived. However, the Kahta court—following the process for remanding decisions under the ordinary appeals procedure—reinserted the case file into the docket, held a hearing to take the parties’ opinion regarding the reversal judgment, and issued a corrected ruling in line with the 11th Civil Chamber’s judgment. The chief prosecutor once again appealed in the interest of law, arguing that the second decision of the Kahta court was invalid given that the reversal judgment of the Court of Cassation did not invalidate the first decision of the court or its legal affects in accordance with article 363(2) of the CPC. The 11th Civil Chamber agreed, and this time vacated the second decision of the Kahta court.

The appeal in the interest of law was first introduced in Turkish civil procedure law by article 427 of the Civil Procedure Code of 1927 (Law No. 1086). That provision foresaw the process of appealing in the interest of the law only for first instance court decisions that could not be appealed due to low value, and did not apply to decisions that were finalized because the parties did not appeal while that recourse was open to them. According to the Commentaries on the Code of 1927 of Mustafa Resit Belgesay, who served as the rapporteur of the preparation commission of the Code of 1927 and later became professor ordinarius of the Istanbul University Law School, article 427 also did not allow the lower court whose decision was reversed to revise its ruling on the matter as required under the ordinary appeals procedure.

Prof. Ejder Yilmaz (ret., Ankara University Law School) wrote that a key difference between ordinary appeal and appeal in the interest of law is that while the former categorically precludes the procedural finalization (becoming chose jugée) of the appealed decision, the latter does not. Prof. Yilmaz also points out that appeal in the interest of law did not exist in the Neuchâtel Civil Procedure Code as revised in 1925, which was largely adopted by way of reception as the Turkish Civil Procedure Code of 1927.

A procedure similar to the current article 363 of the CPC exists, however, in French civil procedure law as “pourvoi dans l’intérêt de la loi,” which was introduced by article 51 of Law No. 47-1366 of July 23, 1947 and later reintroduced by article 17 of Law No. 67-523 of July 3, 1967. The rule was consolidated in the French Civil Procedure Code in 2014 as article 639-1.

Updated September 16, 2019

 

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