INTRODUCTION

1.  The application concerned the applicant’s conviction under section 114j of the Penal Code, read with Executive Order no. 1200 of 28 September 2016 Prohibiting the Entry into or Stay in Certain Conflict Zones (hereinafter “the Executive Order” or “the 2016 Executive Order”), for having entered and taken up residence in the al-Raqqa district in the Raqqa province of Syria without permission from the police and without any legitimate purpose. The applicant was sentenced to imprisonment for six months.

2.  While in Syria, he had engaged in armed combat against the terrorist organisation Islamic State (“IS”) for the Kurdish People’s Defence Units movement (“the YPG”) on several occasions.

3.  Before the Court the applicant complained that his conviction and sentence had been in breach of Article 7 of the Convention and of Article 2 of Protocol No. 4 to the Convention.

THE FACTS

4.  The applicant was born in 1978 and lives in Aarhus. He had been granted legal aid. He was represented by Mr Bjørn Elmquist, a lawyer practising in Copenhagen.

5.  The Government were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their coAgent, Ms Nina HolstChristensen, from the Ministry of Justice.

6.  The facts of the case may be summarised as follows.

7.  In March 2017 the applicant gave various interviews to an online newspaper and other media, stating amongst other things that he had been on the front line in the village of Tal Saman about 30 km north of Raqqa one morning in early January 2017. Believing that the village was the same as Tal Elsamen, which is located in the al-Raqqa District in the Raqqa Province of Syria, the police initiated an investigation in respect of the applicant.

.  On 1 February 2019 the applicant was charged with breaching section 114j(1), read with section 114j(3), of the Penal Code and section 1(1)(i) of Executive Order No. 1200 of 28 September 2016 Prohibiting the Entry into and Stay in Certain Conflict Zones (hereinafter “the Executive Order” or “the 2016 Executive Order”), in that during the period from about 3 November 2016 to about 17 March 2017 he had stayed in the town of Ayn Issa (also spelled Ein Issa) in Syria without permission from the police or a meritorious purpose. He was accused of travelling on up to twenty-five occasions from that location to the al-Raqqa District in the Raqqa Province and staying there, including around the village of Tal Elsamen, and of taking part in the armed conflict against IS on several occasions, on the side of the YPG.

.  Before the District Court (Retten i Aarhus) the applicant pleaded not guilty. He stated that he had left Denmark on 22 August 2016 and had entered Syria on 30 September 2016. He had left Iraq on 7 April 2017 and had entered Denmark again on 8 April 2017. The purpose of his journey was to support the revolution as he had considered the Kurdish area to be an autonomous zone. He had established contact with the YPG, which had helped him reach Syria, where he had wanted to take part in battles fought by the YPG. On his arrival in Syria, he had been taken to a training camp, where he had been given classes and training in matters such as handling weapons. At his own request, he had become part of a unit with heavy weapons. The unit had been stationed in the town of Ayn Issa, the front line being one or two kilometres outside the town. Two days after his arrival, an operation had been launched against Raqqa, and the front line had moved towards Raqqa. The applicant had followed the front line and had taken a few detours back to Ayn Issa. The applicant stated that he could easily have passed through the district border twenty-five times. He had been shot at seven or eight times during his stay, and on one single occasion he had returned fire. The applicant also stated that he had not been aware of the existence of section 114j of the Penal Code. The thought that his actions might be criminal had occurred to him, but he had not examined it any further, and moreover it had not had any impact on his decision.

.  On 4 June 2018 the District Court found the applicant guilty as charged and sentenced him to six months’ imprisonment.

.  On appeal to the High Court (Vestre Landsret), the applicant testified in addition that he had taken a photograph of a map drawn on a wall by the leader of the applicant’s combat unit as an attempt to explain where they were in Tal Elsamen, in comparison to where IS was.

.  On 12 November 2018 the High Court upheld the District Court judgment. The High Court found it established that the applicant had intentionally entered and remained in the prohibited zone of the al-Raqqa District in the Raqqa Province of Syria without permission from the police and without any legitimate purpose. The Executive Order included a map, and since it was apparent from both the name of the area and the map which areas were off limits in terms of entry and stay, the High Court found that the prohibition was sufficiently clearly described. The High Court also found that the restriction on the applicant’s freedom of movement did not constitute a violation of his rights under Article 2 of Protocol No. 4 to the Convention.

.  Having obtained leave to appeal, the applicant brought the case before the Supreme Court (Højesteret), where the issues to be determined were whether the acts were punishable under section 114j of the Penal Code; whether the prohibition in section 114j was described in a manner that was sufficiently clear for him to be sentenced and was in compliance with Article 7 of the Convention; whether his conviction was contrary to Article 2 of Protocol No. 4 to the Convention; and whether he should be acquitted because permission was no longer required to enter or stay in the area in question. It was not disputed that the applicant’s acts were subject to Danish criminal jurisdiction.

.  By a judgment of 27 August 2019, the Supreme Court found against the applicant. It was satisfied that the applicant’s entry into and stay in the al-Raqqa District fell within the scope of the wording of section 114j(1), read with section 114j(3), of the Penal Code, read with section 1(1)(i) of the Executive Order. Situations like the one at hand, where the relevant person had fought against a terrorist organisation, also fell within the scope of the provisions in question. That finding followed from the wording of and the preparatory notes on section 114j of the Penal Code, including the meritorious purposes set out under section 114j(4).

.  The Supreme Court considered that the applicant’s conviction did not contravene Article 7 of the Convention since the provisions were accessible and foreseeable and section 1(1)(i) of the Executive Order set out clearly that it was unlawful to enter and stay in the al-Raqqa District without permission.

.  Moreover, in respect of Article 2 of Protocol No. 4 to the Convention, the Supreme Court found that the scheme set out in section 114j of the Penal Code was justified by significant considerations of general importance, that is, national security, public safety and the prevention of crime, and that the prohibition on entry into and stay in the al-Raqqa District did not go beyond what was necessary to achieve the intended aim. The Supreme Court emphasised the area was of limited size, and that it would have been possible for the applicant to obtain permission to travel to and stay in the area if his visit had served a meritorious purpose under section 114j(4) of the Penal Code.

.  The Supreme Court considered whether the applicant could be acquitted by virtue of section 3(1) of the Penal Code because the requirement for permission to enter or stay in the al-Raqqa District had subsequently been repealed by Executive Order no. 708 of 6 July 2019 (“the 2019 Executive Order”). The Supreme Court observed in this context that the new statutory regulation had not revised the scope of the sanctions set out in section 114j of the Penal Code, and that the 2019 Executive Order did not redefine the culpability of persons who breached the prohibition on entry into and stay in the prohibited zones listed in the 2016 Executive Order without permission. On that basis, and with reference to an information letter of 8 July 2019 from the Minister of Justice to the Danish Parliament (Folketinget) and to a press release issued on 26 April 2019, the Supreme Court found that the repeal of the 2016 Executive Order was attributable to extrinsic circumstances resulting from specific changes in the situation in Syria. Those changes had occurred after the time of the offence and were therefore irrelevant to the issue of guilt, and the applicant’s actions had to be adjudicated on the basis of the criminal law applicable at the time of the offence, in accordance with the second sentence of section 3(1) of the Penal Code.

.  The Supreme Court had regard to the case-law of the Court and observed in that connection that neither Article 7 of the Convention nor the third sentence of Article 49 § 1 of the Charter of Fundamental Rights of the European Union, were the Charter to apply to the case (see Article 51 § 1), could be deemed to prevent the punishment of the applicant for breaching section 114j of the Penal Code.

.  The Supreme Court upheld the applicant’s sentence of six months’ imprisonment and refused to consider it a mitigating circumstance that the applicant had taken part in the armed conflict against IS during his stays in the al-Raqqa District. Moreover, it found that punishment of the applicant would not be contrary to Article 7 of Convention

.  A minority of two judges found that the applicant should be given a suspended sentence of imprisonment for a term of three months. They found that it could be inferred from the preparatory notes that the insertion of section 114j in the Penal Code did not serve the independent purpose of introducing sanctions for participating in armed conflicts in zones subject to a prohibition on entry and stay when such participation involved activities against a terrorist organisation, but that the provision was necessary for evidential reasons for the purpose of combating terrorism. The minority referred to the fact that the applicant had only been sentenced for breaching the prohibition on entry into and stay in the al-Raqqa District, where he had taken part in the YPG’s armed conflict against IS, and that according to the information available, the YPG, which was not a terrorist organisation, played a crucial role in the military efforts to combat IS.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

The Penal Code

21.  The relevant provisions of the Penal Code, as applicable at the time of the offence, read as follows:

Section 3

“(1) If the criminal legislation in force at the time of the adjudication of a criminal act differs from the legislation in force when the act was committed, the issues of criminality and penalty must be decided under the most recent statute, provided always that the decision may not result in a more severe sentence than the sentence imposable under the former statute. If the statute no longer applies on account of extrinsic circumstances irrelevant to the issue of guilt, the criminal act must be adjudicated under the former statute.”

Section 114e

“Imprisonment for a term not exceeding six years shall be imposed on any person who otherwise facilitates the activities of a person, a group or an association committing or intending to commit an act falling within section 114, 114a, 114b, 114c or 114d [those provisions criminalise terrorism (section 114), offences considered terrorist acts under the Council of Europe Convention on the Prevention of Terrorism which do not already fall within section 114 (section 114a), the financing of terrorism (section 114b), recruitment for terrorism (section 114c) and instruction in terrorism (section 114d)]. If the relevant person is a member of the armed forces, the sentence may be increased to imprisonment for a term not exceeding ten years, or in particularly aggravating circumstances to imprisonment for a term not exceeding sixteen years. Situations in which the relevant person has participated in combat shall be considered particularly aggravating circumstances.”

Section 114j

“(1) Any person who is a Danish national or habitually resident within the Danish State and who enters or stays in an area as referred to in subsection (3) without permission shall be liable to imprisonment for a term not exceeding six years, but see subsection (2).

(2) Subsection (1) shall not apply to any entry and stay for the purpose of exercising a public function or office with a Danish, foreign or international organisation.

(3) Following negotiation with the Minister for Foreign Affairs and the Minister of Defence, the Minister of Justice may lay down rules determining that an area in which a group or an association as referred to in section 114e is a party to an armed conflict will fall within subsection (1). By a parliamentary resolution, Parliament may repeal rules laid down by the Minister of Justice under the first sentence of this subsection.

(4) The Minister of Justice or the person so authorised by the Minister may permit a person, upon application, to enter or stay in an area as referred to in subsection (1) if the entry or stay serves a meritorious purpose. A permission can comprise a group of persons involved in a particular activity or organisation, etc.

(5) The Minister of Justice may lay down detailed rules on the submission of applications under subsection (4), including the time-limit for applications. The Minister of Justice may specify in that connection that decisions made pursuant to subsection (4) cannot be brought before a higher administrative authority.”

.  Section 114j was inserted into the Penal Code by Act no. 642 of 8 June 2016. The following appears from the general notes on the Bill (see Bill no. L 187 of 4 May 2016 as promulgated on page 2 of Supplement A to the Official Report on Parliamentary Proceedings (Folketingstidende) for 201516 on Bill no. 187 as introduced):

“1. Introduction

The purpose of the Bill is mainly to strengthen the safeguards of the criminal law for preventing participation in armed conflicts abroad for terrorist groups by the introduction of more severe sentences and a new power to prohibit the entry into and stay in certain conflict zones without prior permission. Moreover, it is proposed to insert a new criminal law provision on the receipt of financial support from a terrorist organisation.

It is the assessment of the Danish Security and Intelligence Service (Politiets Efterretningstjeneste) that persons returning to Denmark after having participated in combat operations in Syria and Iraq constitute a particular terrorist threat to Denmark. The Government therefore wants to tighten its control of foreign fighters who consider leaving Denmark to join armed conflicts like those in Syria and Iraq. The general purpose of the Bill is to increase the consequences for those going abroad and to strengthen the powers of the authorities to prosecute returning foreign fighters.

The Bill contains the following three main elements:

...

Secondly, it is proposed to introduce a power to impose, by an administrative decision, a ban prohibiting Danish nationals and foreigners resident in Denmark from entering and staying in an area in which a terrorist organisation is a party to an armed conflict unless they have permission from the Danish authorities. However, it is proposed that a person exercising a public function or office with a Danish, foreign or international organisation will be able to enter and stay in such area without prior permission. Any entry and stay for other purposes will require prior permission, which can be given upon application if the entry or stay serves a meritorious purpose. There will be a power to grant individual permission to particular persons and collective permission to a group of persons defined by their affiliation with a particular enterprise, organisation or the like. It is proposed that breaches of such prohibitions on entry and stay will be punishable by a fine or imprisonment for a term not exceeding six years.

The purpose of this proposal is to make it easier to punish individuals who enter or stay in a conflict zone to take part in an armed conflict, siding with a terrorist organisation or a similar party. As is the case today, it will not be necessary to prove that the relevant persons have violated the Penal Code provisions on terrorism or the provision on treason by enrolling with hostile armed forces. It will be sufficient that it can be proved that the relevant person entered or stayed in the designated zone without permission.”

.  The following appears in the specific notes on section 114j of the Penal Code (see pages 23 et seq. of Supplement A to the Official Report on Parliamentary Proceedings for 2015-16 on Bill no. 187 as introduced):

“... It is proposed that the minimum and maximum penalties for breaching the prohibition on entry and stay will be a fine or imprisonment for a term not exceeding six years.

It will be a breach of the prohibition whenever a person enters or stays without permission for a main purpose other than that specified in the permission or after expiry of the permission.

Only intentional violations of the prohibition are punishable offences: see section 19 of the Penal Code. However, ignorance of the criminal law provision does not preclude intent. For this reason, no intent is required to be found guilty of entering and staying in a zone subject to the requirement of prior permission. On the other hand, intent is required to be found guilty of entering or staying in a zone that has been so designated. No one can therefore be sentenced for unintentionally entering or staying in the zone. ...

The sanction for breaching the prohibition on entry and stay would normally be a short prison sentence measured in months where it was a first offence. If there were mitigating circumstances, including when a person presented proof of a meritorious purpose for his or her entry or stay, it would normally be possible to impose a sanction in the form of a fine.

Sentences are still to be determined by the courts based on a specific assessment in the individual case taking into account all circumstances of the case, and the level of the individual sanction can therefore be increased or decreased if there are aggravating or mitigating circumstances: see in this respect the general rules in Part 10 of the Penal Code on sentencing.

It is proposed by subsection (2) that no prohibition on entry and stay as mentioned in subsection (1) will apply to entry or stay for the purpose of exercising a public function or office with a Danish, foreign or international organisation. This exemption also extends to any entry and stay while serving in Danish or foreign governmental armed forces or in international armed forces.

The situations mentioned in subsection (2) fall entirely outside the scope of the prohibition on entry and stay mentioned in subsection (1). Accordingly, no permission is required in order to enter and stay for the purpose of exercising a public function or office.

A prohibition on entry and stay under subsection (1) applies to the zones listed in subsection (3).

According to the proposed wording of subsection (3), the Minister of Justice has the authority, following negotiation with the Minister of Foreign Affairs and the Minister of Defence, to lay down by executive order the zones that will be subject to a prohibition on entry and stay under subsection (1). The provision is to be understood in the sense that it is only possible to prohibit entry into and stay in zones outside the territory of the Danish State.

An area can be included in the list of zones subject to the prohibition on entry and stay if a group or an association committing or intending to commit acts falling within section 114, 114a, 114b, 114c or 114d is a party to an armed conflict in the designated zone. The references to an armed conflict and a party to an armed conflict must be understood in accordance with international humanitarian law.

Where this condition has been met, the Government has wide discretionary powers to determine which zones are to be subject to a prohibition on entry and stay under the proposed subsection (1). When such a decision is made, regard must be had to security and to foreign and security policy, including relations with foreign powers and international institutions.

The Government is not obliged to determine that an area in which the relevant condition has been met must be subject to a prohibition on entry and stay.

...

It is proposed by the first sentence of subsection (4) that the Minister of Justice or the person so authorised by the Minister must permit a person, upon application, to enter and stay in an area subject to a prohibition under subsection (1) if the entry or stay serves a meritorious purpose.

...

Meritorious purposes are generally to be taken to mean purposes which are not related to the armed conflict and which are deemed to be reasonable activities despite the ongoing armed conflict. Any entry and stay to perform journalistic activities, offer humanitarian aid, visit close family members or pursue existing business activities would normally serve meritorious purposes.

Any entry and stay to perform journalistic activities or offer humanitarian aid would normally also serve a meritorious purpose even when the journalistic activities or humanitarian aid are related to the armed conflict. The same applies to any entry and stay for the purposes of studies or research related to the armed conflict.

No entry and stay to undertake business activities relating to supplies to the warring parties or to visit a family member currently participating in the armed conflict would serve a meritorious purpose. However, entry and stay to visit a family member who has previously taken part or is expected subsequently to take in the armed conflict, but is not currently participating in the armed conflict, would serve a meritorious purpose, regardless of whether the family member is on leave or the like or has been hospitalised due to injuries.

No entry and stay to take part in the armed conflict or to support either party to the armed conflict would serve a meritorious purpose under subsection (4).”

.  As regards compatibility with human rights, the following appears in the Bill (see pages 16 et seq. of Supplement A to the Official Report on Parliamentary Proceedings for 2015-16 on Bill No. 187 as introduced):

“6. Compatibility with human rights

Depending on the circumstances, the scheme proposed in section 114j, under which any Danish national or person habitually resident in Denmark who enters or stays without permission in certain zones defined by the Minister of Justice can be punished with imprisonment for a term not exceeding six years, may interfere with rights guaranteed by the Convention.

The main rights at stake are those granted by Article 2 of Protocol No. 4 to the Convention on the liberty of movement and freedom to choose one’s residence, Article 8 of the Convention on the right to respect for private and family life and Article 10 of the Convention on the freedom of expression.

If discretionary powers have been granted to the authorities by the legislation of a State party, whether in full or in part, the European Court of Human Rights would normally not perform an abstract review of whether the legislation complies with the Convention. The decisive factor is how the legislation is applied in practice.

It follows from Article 2 of Protocol No. 4 to the Convention that everyone lawfully resident within the territory of a State has, within that territory, the right to liberty of movement and freedom to choose his residence and that everyone is free to leave any country, including his own. It follows from the case-law of the European Court of Human Rights that the provision also creates a right to go to a country of one’s own choice provided that one is allowed entry, see, inter alia, judgment of 20 February 1995, Peltonen v. Finland.

...

However, the protection afforded by those provisions is not absolute. It is possible to interfere with the above-mentioned rights if the interference is prescribed by law and is necessary in a democratic society (that is, the interference meets the requirement of proportionality) and serves a specific meritorious purpose, including national security, public safety and the prevention of crime: see Article 2 § 3 of Protocol No. 4 to the Convention and Article 8 § 2 and Article 10 § 2 of the Convention.

The proposed scheme prohibiting such entry and stay is inserted into the Penal Code, and, as mentioned in clause 1 above, the purpose of the scheme is to strengthen the safeguards of the criminal law for preventing individuals from taking part in armed conflicts abroad, by increasing the consequences for those going abroad and strengthening the powers of the authorities to prosecute returning foreign fighters. The proposed prohibition on entry and stay is thus intended to make it easier to punish individuals who enter or stay in a conflict zone in order to take part in an armed conflict, siding with a terrorist organisation or a similar party, as it will be sufficient to prove that the relevant person entered or stayed in a designated zone without permission.

As to the background to the scheme, it appears from clause 1 above that it is the assessment of the Danish Security and Intelligence Service that persons returning to Denmark after having participated in combat operations in Syria or Iraq constitute a particular terrorist threat to Denmark. The Government therefore wants to tighten its control of foreign fighters who consider leaving Denmark to join armed conflicts like the ones in Syria and Iraq.

The Minister of Justice has the authority, following negotiation with the Minister of Foreign Affairs and the Minister of Defence, to lay down rules determining which zones will be subject to such prohibitions on entry and stay.

An area can be designated as a conflict zone subject to the prohibition of entry and stay if a group or association committing or intending to commit acts falling within section 114, 114a, 114b, 114c or 114d of the Penal Code is a party to an armed conflict in the designated zone. The proposed provision thus restricts what areas can be designated as zones subject to the prohibition of entry and stay.

When the above condition has been met, the Government has wide discretionary powers to determine the zones subject to such prohibition. In this connection, security issues, relations with foreign powers and international institutions and similar factors may be taken into account.

Prohibited zones will be listed in an executive order, which makes information on the geographical scope of the prohibition on entry and stay available to each individual citizen.

Any decision allowing a person to enter and stay in a zone subject to the prohibition of entry and stay is made based on an individual and specific assessment.

...

Permission must be granted if the entry or stay serves a meritorious purpose. According to the explanatory notes to the Bill, meritorious purposes are generally to be taken to mean purposes which are not related to the armed conflict and which are deemed to be reasonable activities despite the ongoing armed conflict. Any entry and stay to perform journalistic activities, offer humanitarian aid, visit close family members or pursue existing business activities would normally constitute meritorious purposes. It also appears that journalistic or humanitarian activities and studies or research related to the armed conflict would constitute meritorious purposes.

It should be pointed out that the proposed provision explicitly states that the prohibition on entry and stay does not apply to entry and stay for the purpose of exercising a public function or office with a Danish, foreign or international organisation. Therefore, it is not necessary to apply for prior permission to enter or stay for such purposes.

...

The proposed scheme is thus justified by significant considerations of general importance, that is, national security, public safety and the prevention of crime, and does not go beyond what is necessary to achieve the intended aim according to the Ministry of Justice.

Against this background, the Ministry of Justice finds that the proposed scheme is not contrary to the European Convention on Human Rights.”

Executive Order no. 1200 of 28 September 2016 Prohibiting the Entry into or Stay in Certain Conflict Zones

.  The relevant provisions of the 2016 Executive Order read as follows:

Section 1

“(1) Permission is required under the rules of this Executive Order (see section 114j(3) of the Penal Code) to enter or stay in the following areas (see also attachment 1 [map of the area]):-

(i) the al-Bab District in the Aleppo Province, the al-Thawrah District and the al-Raqqa District in the Raqqa Province and the Deir al-Zour Province of Syria;

(ii) the Mosul District in the Nineveh Province of Iraq.

(2) Danish nationals and persons habitually resident within the Danish State must obtain permission unless the purpose of their entry or stay is to exercise a public function or office with a Danish, foreign or international organisation.”

Executive Order no. 708 of 6 July 2019 Prohibiting the Entry into and Stay in Certain Conflict Zones

.  The relevant provisions of the 2019 Executive Order read as follows:

Section 1

“(1) Permission is required under the rules of this Executive Order (see section 114j(3) of the Penal Code) to enter or stay in the following areas (see also Attachment 1):-

the Dayr al-Zawr Province of Syria (see also item 2 of Attachment 1);

the Idlib Province of Syria (see also item 3 of Attachment 1).

(2) Danish nationals and persons habitually resident within the Danish State must obtain permission unless the purpose of their entry or stay is to exercise a public function or office with a Danish, foreign or international organisation.”

.  The press release of 26 April 2019 from the Minister of Justice stated as follows:

“The situation in Syria and Iraq has changed since the previous Government introduced a prohibition on entry into and stay in certain parts of the countries. The terrorist organisation ISIL no longer controls any territory in Syria and Iraq. The number of western foreign fighters in those territories has also changed. For those reasons, the Government now wants to repeal the prohibition on entry into and stay in Iraq and update the list of areas designated as prohibited zones in Syria.

... Persons who have already stayed illegally in the areas previously designated as prohibited zones can still be punished. ...

Former prohibited zones that will no longer be subject to prohibition of entry and stay:

... the al-Raqqa District in the Raqqa Province of Syria. ...”

.  In the information letter of 8 July 2019, the Minister of Justice wrote the following to the Danish Parliament:

“The situation in Syria and Iraq has developed since the [2016] Executive Order was made, so it is expedient to update the geographical scope of its application. For this reason, the Ministry of Justice has drafted, in consultation with the Ministry of Defence and the Ministry of Foreign Affairs, the appended proposal for an [2019] executive order with an updated list of areas designated as zones subject to the prohibition of entry and stay; see section 1 of the proposed executive order.

As a consequence of the update:

... the al-Raqqa District in the Raqqa Province of Syria ... is removed from the list of zones subject to the prohibition.

I expect to issue the executive order within a few days, and it will come into force two days later. It is observed as a matter of form that persons staying illegally in an area designated as a zone falling within the scope of the current Executive Order, but not included in the scope of the new executive order, can still be punished for staying illegally in the zone that was previously subject to a prohibition.”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

29.  The applicant complained that his conviction and sentence had been in breach of Article 7 of the Convention, which reads 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.”

A.  Admissibility

30.  The Government submitted that the case should be declared inadmissible as manifestly ill-founded.

31.  The applicant disagreed.

32.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.  Merits

The parties’ submissions

33.  The applicant maintained, among other things, that the law lacked foreseeability. Section 114j of the Penal Code did not apply in a situation like the present one, where he had joined a foreign allied organisation, namely the YPG, and fought against a terrorist organisation. Moreover, the Executive Order and the map attached was too vague and lacking in detail so that it was impossible to ascertain which zones were subject to the prohibition on entry and stay.

.  Furthermore, the 2019 Executive Order, under which permission was no longer required to enter and stay in the al-Raqqa district in Syria, should have been applied in his case, leading to his acquittal.

35.  The Government submitted that the applicant’s conviction had had a sufficient legal basis in domestic law, which had been accessible and foreseeable as to its effects. They referred to the wording of section 114j(1) and (3) of the Penal Code and section 1(1)(i) of the 2016 Executive Order, its illustrative map, the preparatory notes, and the findings of the domestic courts.

36.  Moreover, they emphasised that the al-Raqqa district had no longer been included in the 2019 Executive Order because IS no longer controlled any area in Syria. However, there had been no redefinition of the culpability of persons who had already violated the prohibition on entry into and stay in the prohibited zones listed. The repeal of the Executive Order was thus relevant only to extrinsic circumstances that had occurred after the time of the offence.

The Court’s assessment

Whether the applicant’s conviction was in accordance with the law

.

38.  It is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. One of the standard techniques of regulation by rules is to use general categorisations as opposed to exhaustive lists. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260A; Del Río Prada, cited above, § 92; and Advisory opinion P16-2021-001, cited above, § 67). When the legislative technique of categorisation is used, there will often be grey areas at the fringes of the definition. This penumbra of doubt in relation to borderline facts does not in itself make a provision incompatible with Article 7, provided that it proves to be sufficiently clear in the large majority of cases (see Cantoni v. France, 15 November 1996, § 32, Reports of Judgments and Decisions 1996V).

39.  The Court reiterates its settled case-law to the effect that it is primarily for the national authorities to interpret and apply domestic law (see, inter alia, Del Río Prada, cited above, § 105 and Jorgic v. Germany, no. 74613/01, § 102, ECHR 2007-III.) However, when a Convention right itself, Article 7 in the present case, requires that there was a legal basis for a conviction and sentence, the Court’s powers of review encompass an examination of whether the result reached by the domestic courts was compatible with Article 7 of the Convention, even if there were differences between the legal approach and reasoning of this Court and the relevant domestic decisions. To accord a lesser power of review to this Court would render Article 7 devoid of its purpose (see, for example, Vasiliauskas v. Lithuania, cited above, §§ 160161).

40.  The Court notes that all the judicial bodies, namely the District Court, the High Court and the Supreme Court, found that the law was sufficiently clearly set out in section 114j(1), read with section 114j(3), of the Penal Code and section 1(1)(i) of the 2016 Executive Order.

.  They examined the wording of section 114j and the preparatory notes, according to which the overall purpose of section 114j of the Penal Code was to make it a criminal offence to enter or stay in an area with an armed conflict to which a group or an association as mentioned in section 114e was a party. The purpose of the entry or stay was therefore irrelevant. It was therefore also the intention to make it a criminal offence where the relevant person had fought against a terrorist organisation. This was clearly expressed in the notes on the scheme of permissions set out in section 114j(4), which said that no entry and stay to take part in an armed conflict or to support either party (emphasis added) to the armed conflict would serve a meritorious purpose that could justify the grant of permission to enter and stay in a prohibited zone (see paragraph 23 above).

.  They also found that it was sufficiently clear from section 1(1)(i) of the 2016 Executive Order, including the attached map, that it was unlawful to enter and stay in the al-Raqqa District without permission (see paragraphs 12 and 15 above).

.  Having regard to the above, the Court cannot find any grounds on which to criticise the domestic courts’ finding in this respect (see paragraph 40 above). It is satisfied, having regard to the wording of section 114j and the preparatory notes, that the offence was clearly defined in the law and fulfilled the requirements notably of accessibility and foreseeability (see, for example, Jorgic v. Germany, cited above, § 100). It follows that there has been no violation of Article 7 regarding this complaint.

Whether the applicant should have been acquitted because the 2019 Executive Order no longer included the al-Raqqa District

Whether the applicant should have been acquitted because the 2019 Executive Order no longer included the al-Raqqa District

47.  The Supreme Court examined whether, by virtue of section 3(1) of the Penal Code, the applicant should be acquitted, since under the 2019 Executive Order, which came into force on 11 July 2019, there was no longer any prohibition on entering or staying in the al-Raqqa District of Syria without permission. It followed from section 3(1) that where the criminal legislation in force at the time of the adjudication of a criminal act differed from the legislation in force when the act had been committed, the issue of criminality had to be decided under the most recent statute, provided that the decision did not result in a more severe sentence than the sentence imposable under the former statute. If the statute no longer applied as a result of extrinsic circumstances irrelevant to the issue of guilt, the criminal act had to be adjudicated under the former statute.

.  The Supreme Court noted that the Minister of Justice, in a press release and an information letter to the Danish Parliament, dated respectively April and July 2019 (see paragraphs 27 and 28 above), had stated that the situation in Syria had developed since the 2016 Executive Order had been made, so it had been expedient to update the geographical scope of application of the Order. The terrorist organisation IS no longer controlled any territory in Syria, and the number of western foreign fighters there had also changed.

.  The Supreme Court also observed that the 2019 Executive Order did not revise the scope of the sanctions set out in section 114j of the Penal Code. Moreover, in the opinion of the Supreme Court the 2019 Executive Order did not redefine the culpability of persons who had violated the prohibition on entry into and stay in the prohibited zones listed in the 2016 Executive Order without permission. The repeal of the 2016 Executive Order was attributable only to extrinsic circumstances resulting from specific changes in the situation in Syria that had occurred after the time of the offence and were thus irrelevant to the issue of guilt.

.  In conclusion, the Supreme Court found that the applicant’s actions had to be adjudicated on the basis of the criminal law applicable at the time of the offence (see the second sentence of section 3(1) of the Penal Code).

.  Moreover, having regard to the case-law of the Court, it found that punishment of the applicant would not be contrary to Article 7 of Convention.

52.  The Court observes that the present case significantly differs from its previous case-law on the principle of the retroactivity of the more lenient criminal law. It recalls that it has found a violation in cases where the criminal law or the criminal procedure were amended (see, among others, Scoppola cited above and Sinan Çetinkaya and Ağyar Çetinkaya v. Turkey, no. 74536/10, 24 May 2022), or where the domestic courts subsequently exercised their judicial discretion in an expansive manner by adopting an interpretation that was inconsistent with both prevailing national jurisprudence and the essence of the offence as defined by the national law (see, for example, Parmak and Bakır, cited above). In the present case, however, the Penal Code and procedure remained unchanged. The amendment in the 2019 Executive Order only related to changed factual circumstances that had occurred after the time of the offence, resulting from specific changes in the situation in Syria. It was thus unrelated to the assessment of the criminal act committed in 2016/2017 (see paragraph 17 above).

53.  In the light of the above considerations the Court sees no reason to call into question the Supreme Courts’ finding that the applicant’s actions had to be adjudicated on the basis of the criminal law applicable at the time of the offence, in accordance with the second sentence of section 3(1) of the Penal Code.

54.  It follows that there has been no violation of Article 7 regarding this complaint.

II.   ALLEGED VIOLATION OF ARTICLE 2 of Protocol No. 4 to 	the Convention

55.  The applicant also complained that his conviction breached Article 2 of Protocol No. 4 to the Convention, which reads as follows:

“1.  Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2.  Everyone shall be free to leave any country, including his own.

3.  No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4.  The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”

A.  Admissibility

.  The Government submitted that the application should be declared inadmissible as manifestly ill-founded.

57.  The applicant disagreed.

58.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.  Merits

59.  The applicant maintained that the restriction on his entry into and stay in the al-Raqqa District had not been in accordance with the law, or necessary in a democratic society. He emphasised in that connection that he had not been siding with a terrorist organisation or a similar party. On the contrary, he had wanted to contribute actively to the protection of democracy, including against terrorist attacks. In his view, foreign fighters who were against terrorists were not covered by section 114j of the Penal Code, and there were no substantial arguments for including them either.

.  The Government maintained that the interference had been prescribed by law and had pursued the legitimate aims of national security, public safety and prevention of crime. It was clear from the preparatory notes to section 114j that the purpose had been to make it easier to punish individuals who entered or stayed in a conflict zone in order to take part in armed conflict, siding with for example a terrorist organisation, as it would be sufficient to prove that the relevant person had entered or stayed in a designated zone without permission. It was not decisive which party to the armed conflict the relevant person had joined. Moreover, the interference had been necessary in a democratic society and proportionate to the aim pursued. They referred notably to the reasons advanced by the Supreme Court.

61.  The Court reiterates that Article 2 of Protocol No. 4 guarantees that everyone shall be free to leave any country, including his own. The provision does not directly address restrictions on going to certain areas in other countries. Nevertheless, it implies the right to travel to any country of the person’s choice to which he or she may be admitted (see, inter alia, Baumann v. France, no. 33592/96, § 61, ECHR 2001-V, and Khlyustov v. Russia, no. 28975/05, § 64, 11 July 2013).

62.  In the present case the applicant was free to leave Denmark. However, in the context of preventing participation in armed conflicts abroad, under section 114j (1) read with section 114j (3) of the Penal Code, and section 1 (1) of the 2016 Executive Order, he was, as a Danish national, prohibited from entering and staying in the al-Raqqa district in Syria without permission by the Danish State. Proceeding on the assumption that such a restriction falls under Article 2 of Protocol No. 4, it must therefore be examined whether the interference was “in accordance with law”, pursued one or more of the legitimate aims set out in Article 2 § 3 of Protocol No. 4 and was “necessary in a democratic society” to achieve such an aim (see Nalbantski v. Bulgaria, no. 30943/04, § 61, 10 February 2011; Stamose v. Bulgaria, no. 29713/05, § 30, ECHR 2012; Kerimli v. Azerbaijan, no. 3967/09, § 45, 16 July 2015; and De Tommaso v. Italy [GC], no. , § 105, 23 February 2017).

62.  In the present case the applicant was free to leave Denmark. However, in the context of preventing participation in armed conflicts abroad, under section 114j (1) read with section 114j (3) of the Penal Code, and section 1 (1) of the 2016 Executive Order, he was, as a Danish national, prohibited from entering and staying in the al-Raqqa district in Syria without permission by the Danish State. Proceeding on the assumption that such a restriction falls under Article 2 of Protocol No. 4, it must therefore be examined whether the interference was “in accordance with law”, pursued one or more of the legitimate aims set out in Article 2 § 3 of Protocol No. 4 and was “necessary in a democratic society” to achieve such an aim (see Nalbantski v. Bulgaria, no. 30943/04, § 61, 10 February 2011; Stamose v. Bulgaria, no. 29713/05, § 30, ECHR 2012; Kerimli v. Azerbaijan, no. 3967/09, § 45, 16 July 2015; and De Tommaso v. Italy [GC], no. , § 105, 23 February 2017).

63.  In respect of lawfulness, the Court refers to its findings under Article 7 of the Convention (see paragraphs 40 to 44 above; see also, for example, Baldassi and Others v. France, nos. 15271/16 and 6 others, §§ 41 and 59, 11 June 2020).

63.  In respect of lawfulness, the Court refers to its findings under Article 7 of the Convention (see paragraphs 40 to 44 above; see also, for example, Baldassi and Others v. France, nos. 15271/16 and 6 others, §§ 41 and 59, 11 June 2020).

64.  Having regard to the preparatory notes to section 114j (see paragraphs 22 to 24 above) and the findings of the domestic courts, the Court is also convinced that the interference pursued the legitimate aims of national security, public safety and prevention of crime.

.  The Supreme Court carefully examined the case under Article 2 of Protocol No. 4 and, after carrying out the requisite balancing exercise in the light of the Convention principles, found that the restriction on the applicant’s freedom of movement had been proportionate, notably since the al-Raqqa district was of a limited size and the applicant could have obtained permission to enter and stay there if he had had a meritorious purpose (see paragraph 16 above).

.  The Court considers that the quality of the judicial review of the disputed general measure and its application in the present case militates in favour of a wide margin of appreciation (see, mutatis mutandis, Lings v. Denmark, no. 15136/20, § 58, 12 April 2022).

.  In addition, the Court notes that the restriction only concerned areas in which a terrorist organisation was a party to an ongoing armed conflict. Moreover, the prohibition on entry and stay without permission was not absolute as persons performing a public function or office with a Danish, foreign or international organisation were explicitly exempted from the provision. Furthermore, the relevant zones were revised carefully on an ongoing basis, and the al-Raqqa district was therefore not included in the subsequent 2019 Executive Order. Lastly, the restriction served the purpose of ensuring that persons who were Danish nationals or habitually resident within the Danish State did not independently join any of the parties to the ongoing armed conflict and posed a threat to the society upon their return to Denmark (see paragraph 22 above).

.  In these circumstances, the Court is satisfied that the interference with the applicant’s right to freedom of movement struck a fair balance between the public interest and the rights of the individual, and that it was necessary in a democratic society.

69.  Accordingly, there has been no violation of Article 2 of Protocol No. 4 to the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Declares the application admissible;

Holds that there has been no violation of Article 7 of the Convention;

Holds that there has been no violation of Article 2 of Protocol No. 4 to the Convention.

Done in English, and notified in writing on 18 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 36983/97) against the Kingdom of the  lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a  national, Mr Pieter Jelle Haas (“the applicant”), on 20 December 1995.

2.  The applicant, who had been granted legal aid, was represented by Mr A.W.M. Willems, a lawyer practising in . The  Government (“the Government”) were represented by their Agent,
Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs.

3.  The applicant alleged a violation of Articles 14 and 8 of the Convention taken together in that, as an unrecognised “illegitimate” child, he was not able to inherit from his father.

4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

5.  The application was initially allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court).

6.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section. Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

7.  By a decision of 18 June 2002, the Chamber declared the application admissible.

8.  The Government, but not the applicant, filed observations on the merits (Rule 59 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

9.  The applicant, who was born in 1964, states that he was born from a relationship between his mother and a certain P., a civil law notary (notaris). Although his mother had wanted to marry, P. had not; neither had the two ever lived together. P. had not recognised (erkenning) the applicant. Nevertheless, he made regular payments towards the applicant's care and upbringing, gave the applicant presents for his birthday, visited him and, together with the applicant's mother, went on day trips with him. The applicant called P. “Daddy”.

10.  P. died on 19 August 1992 without leaving a will. His body was cremated. A nephew, K., was identified as his sole heir.

11.  The applicant brought civil proceedings against K., seeking an order that K. hand over P.'s estate. The applicant argued that he had had “family life” with P. within the meaning of Article 8 of the Convention, and that the  legal provisions relating to the position of “illegitimate” and unrecognised children infringed Article 14.

12.  The  (arrondissementsrechtbank) rejected the applicant's claim by a judgment of 23 December 1993. It considered that the difference contained in  legislation on succession between children with and children without legally recognised family relationships (familierechtelijke betrekkingen) did not constitute an unjustified interference in the “family life” of “illegitimate” unrecognised children. In view of the rights and interests of third parties in relation to an inheritance, legal certainty required that only persons with a demonstrable legal family connection with the deceased be able to inherit. An “interference” with any “family life” the applicant might have had with P. was thus “in accordance with the law” and “necessary in a democratic society”. In the light of these considerations, the  did not find it necessary to determine whether or not P. was the applicant's biological father.

13.  The applicant appealed to the Arnhem Court of Appeal (gerechtshof), complaining of the Regional Court's interpretation of Articles 8 and 14 of the Convention, as well as of the fact that the Regional Court had declined to rule on the issue of paternity.

14.  Four witnesses were heard before the Court of Appeal: the applicant, his mother, a friend of his mother and the person who had been the applicant's co-guardian (toeziend voogd). The latter two stated that they were convinced that P. was the applicant's biological father and that he had never denied this fact to them but had, on the contrary, assured them that the applicant would be well provided for. The applicant's mother stated that she had not known any man other than P. until nine years after the applicant's birth, and that P. had referred to the applicant in public as “my son” or “my little boy”. In reply to K.'s argument that he had not been aware of the applicant's existence, the applicant stated that K.'s mother, who was a sister of P., had been so aware and had met the applicant.

15.  In the proceedings before the Court of Appeal the applicant also submitted a number of photographs showing himself in the company of P. and his mother.

16.  On 20 June 1995 the Court of Appeal gave judgment, dismissing the appeal. While it acknowledged that a situation where a court was unable to determine a case like the present one led to an unsatisfactory outcome for the applicant, the Court of Appeal saw no possibility of departing from the recent case-law of the Supreme Court (Hoge Raad) to the effect that it went beyond the jurisprudential task of the judiciary to determine the consequences of the possible incompatibility of Netherlands law with Article 14 of the Convention taken in conjunction with Article 8 (judgment of 24 February 1995, reported in Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1995, no. 468).

17.  The applicant lodged an appeal on points of law (cassatie) with the Supreme Court, which was dismissed on 17 January 1997. The Supreme Court held that, although an inability to inherit based solely on the ground of illegitimacy would be contrary to Article 8 taken in conjunction with Article 14, objective and reasonable grounds could exist to justify other kinds of restrictions on the intestate succession of “illegitimate” children. It then noted that in 1982 a law had come into force aimed at bringing the position of “illegitimate” recognised children into line with the requirements enunciated by the Court in Marckx v. Belgium (judgment of 13 June 1979, Series A no. 31). During the debate on the bill in Parliament, the then Minister of Justice had declared that the question of the position of “illegitimate” unrecognised children in relation to their biological fathers was a valid one, but that it fell to be dealt with in the planned reform of the law of succession.

18.  Since then a number of attempts had been made to bring about this reform and, at the time of the Supreme Court's examination of the present case, a bill was before Parliament. It thus appeared that the legislature was of the view that a reform of the law of succession required the making of important political choices and that the legislative process had not yet come to an end. From this, the Supreme Court concluded in the first place that the absence in Netherlands law at the time of a rule making “illegitimate” unrecognised children the heirs of their biological fathers was not based solely on illegitimacy but on the difficulty, inherent in a reform of legislation, of reaching a sound balance between all the interests involved in the law of succession. Secondly, it followed that the choices to be made fell beyond the scope of the judiciary's jurisprudential tasks and that it was not possible to anticipate legislative developments by judgment. The judgment of the Supreme Court was published in NJ 1997, no. 483, with a critical annotation by a learned author.

II.  Relevant domestic law

19.  Under Article 4:879 § 1 of the Civil Code (Burgerlijk Wetboek –“CC”), only those persons who have a legally recognised family relationship (familierechtelijke betrekking) with a person who has died intestate may inherit from that person.

20.  Legally recognised family relationships between a father and a child exist where a child is born to a married couple or if it is born within 307 days following the dissolution of the marriage (Article 1:197 of the CC). An “illegitimate” child will have a legally recognised family relationship with its father (who does not have to be the biological father) if it has been recognised (erkenning) by the father, either before or after its birth (Article 1:222 of the CC).

21.  Moreover, according to Article 1:215 of the CC, a legally recognised family relationship will also come into existence with the granting of letters of legitimation if it is established that the father, having died before the child was born and without having recognised it, was aware of the pregnancy and had intended to marry the mother.

22.  According to the rules of intestacy, if a deceased does not leave any children with whom he has a legally recognised family relationship or a spouse, his parents and siblings (or their descendants) will inherit from him (Article 4:901 of the CC). If there are such children or a spouse, the parents and siblings are excluded from the inheritance (Articles 4:899 and 4:899a of the CC).

23.  Within one year of the death of the father, a minor child with whom the late father had no legally recognised family relationship may request that an obligation be imposed on the father's heirs to make a lump sum available for his care and upbringing. In the determination of this amount, the court dealing with the request may not exceed the legally reserved portion of the estate (wettelijk erfdeel) to which the child would have been entitled had he had a legally recognised family relationship with his father (Article 1:406 § 5 of the CC).

24.  This is an elaboration of the principle enunciated in Article 1:394 §1 of the CC that, where there is no legally recognised family relationship between a father and his child, the former is only bound to provide maintenance (levensonderhoud) for the child until it has come of age. The legally reserved portion of an estate is that part of a person's estate which will be attributed, according to the rules of intestacy, to the heirs who are direct descendants or ascendants, and which the testator is unable to dispose of by way of donation when alive, or by will.

25.  On 20 March 1996 a bill was presented in Parliament aimed at amending, inter alia, the law of descent (afstammingsrecht; Tweede Kamer (Lower House) 1995-1996, 24 649, nos. 1-2), and on 1 April 1998 a change to the Civil Code came into force. It introduced a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap, Article 1:207 of the CC) which may be requested by the mother or the child. A declaration of paternity has retroactive force to the time of the child's birth, but it does not adversely affect any rights acquired in good faith by third parties.

26.  According to the explanatory memorandum to the bill, the possibility of having paternity determined judicially exists in all neighbouring countries. The absence of this possibility could be in conflict with Article 8 of the Convention taken in conjunction with Article 14, since it could lead to a situation where a child was deprived of a father if the latter were unwilling to recognise it. It was felt that this defect could not be remedied by the fact that a request for determination of a parental maintenance contribution could be made against the father pursuant to Article 1:394 § 1 of the CC.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLES 14 AND 8 OF THE CONVENTION TAKEN TOGETHER

27.  The applicant complained that, unlike “legitimate” or recognised “illegitimate” children, he was unable to inherit from his father.

28.  The relevant parts of Article 8 of the Convention provide:

“1.  Everyone has the right to respect for his private and family life ...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.”

The relevant part of Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... birth or other status.”

29.  The Government denied that there had been a violation of these provisions.

30.  The applicant submitted no argument after the application was declared admissible. In his observations submitted at the admissibility stage, he claimed, referring to the available factual evidence (see paragraph 14 above), that he was without doubt the late P.'s son.

31.  The applicant further pointed to the new legislation allowing the establishment of paternity irrespective of the will of the biological father, with the attendant consequences on inheritance cases, as evidence of altered views on such matters. Taken together with the factual relationship between P., on the one hand, and the applicant and his mother, on the other, this necessarily meant that “family life” in the sense of Article 8 of the Convention existed between P. and the applicant.

32.  Moreover, if the child intended to establish “family life” but the father did not, the former's intentions were more worthy of protection than the latter's. In any case, for the purpose of establishing inheritance rights, biological fatherhood ought to be considered sufficient; it ought not to be required in addition that the father and the child must also have had “effective family life”.

33.  Proceeding on the basis that the case came within the ambit of Article 8 of the Convention, the applicant claimed to be the victim of a difference in treatment between “illegitimate” offspring who had been recognised by their father, and who consequently had recognised family ties with him which enabled them to inherit upon intestacy, and “illegitimate” offspring who had not been so recognised and who therefore did not have such ties.

34.  The difference in treatment could not, in the applicant's submission, be justified in his case. He noted in this respect that he was competing for the inheritance not with the wife of the deceased or with a “legitimate” or recognised “illegitimate” sibling, but with a nephew of P. – a person whose relationship with the deceased was (as he presumed) more remote, not closer, than his.

35.  The Government denied that a relationship amounting to “family life” existed between the applicant and the late P. First of all, they did not consider themselves to be in a position to confirm that P. was the applicant's biological father: as the domestic courts had failed to resolve this issue, it remained in dispute. DNA testing would have been possible in theory. However, P.'s body had been cremated and he had left no known offspring. Consequently, the only person whose DNA could usefully be compared with that of the applicant would be K., who was too distant a relative, if relative he was, for the outcome of such a test to be conclusive.

36.  In the Government's view, other circumstances did not bear out the existence of “family life” either. P. had never lived with the applicant and his mother. Moreover, P. had never wished to establish “family life” with the applicant. This was borne out by P.'s consistent refusal until his death, twenty-eight years after the applicant was born, to recognise the applicant as his son, whatever his reason for such refusal may have been. On this point there was a distinction between the present case and that of Camp and Bourimi v. the Netherlands (no. 28369/95, ECHR 2000-X).

37.  The existence of “family life” between P. and the applicant sufficient to bring the case within the ambit of Article 8 could therefore not be established.

38.  In any event, even assuming that the case came within the ambit of Article 8 and that consequently Article 14 could apply, there was “objective and reasonable justification” for the difference in treatment. The difference was between offspring who did not have legal family ties with their natural fathers and those who – demonstrably – did. It prevented the imposition of legal family ties on unwilling parties and served the interest of legal certainty in matters of inheritance. It could thus reasonably be considered “necessary in a democratic society” in pursuit of the “legitimate aim” of protecting “the rights of others”.

39.  It made no difference, in the Government's submission, that the legislature had subsequently changed its mind and enacted legislation making possible the establishment of a man's paternity of an unrecognised “illegitimate” child against his will. This development had been occasioned by more recent technical and legal developments which were not relevant to the applicant's case.

40.  The Court will examine this case, like that of Camp and Bourimi, cited above, under Article 14 taken in conjunction with Article 8.

41.  It observes in this connection that it has consistently held that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Camp and Bourimi, cited above, and Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 184, § 33).

42.  The Court notes at the outset that in Camp and Bourimi, cited above, it was not disputed that the applicant was Mr Bourimi's child. Furthermore, it was established that Mr Bourimi had wanted to recognise the applicant as his child. Moreover, legal family ties were established between the child and the deceased by means of letters of legitimation. In the instant case, the Court observes, firstly, that on the applicant's own admission he had never lived with P. Any sporadic contacts which he allegedly had with the deceased and any alleged fatherly acts on P.'s part towards him could not be construed as “family life”. Secondly, it has never been the applicant's intention to have his claim to be P.'s son accepted in order to provide him with the emotional security of knowing that he is part of a family, even less so to enable him to create ties with P.'s surviving family circle or to resolve any doubts he may have about his own personal identity – he is convinced in his own mind that he is the unrecognised illegitimate son of P.

43.  In the Court's opinion, the facts of the case cannot be accommodated within the ambit of Article 8 of the Convention, whether seen in terms of “family life” or “private life”. The applicant is essentially complaining about the refusal of the courts to examine and recognise his claim to the estate of P. over that of K. The applicant brought a civil action against K. and sought to persuade the courts of the merits of his claim to be the unrecognised illegitimate son of the deceased. In reality, the courts were faced, not with an issue of “family life” within the meaning of Article 8 or an issue of “private life” seen in terms of personal identity, but with a question of evidence going to the issue of whether legal family ties between the applicant and the deceased should be recognised. The fact that the courts were reluctant to rule on the elements adduced by the applicant cannot be considered in the circumstances as raising an issue which falls within the scope of Article 8. In particular, an applicant cannot derive from Article 8 a right to be recognised as the heir of a deceased person for inheritance purposes. Admittedly, and as the Court held in Marckx, cited above, matters of intestate succession between near relatives prove to be intimately connected with family life (pp. 23-24, §§ 52-54). However, it would be stretching the notion of family life too far to hold in the circumstances of the instant case that its subject matter fell within the scope of that notion.

44.  The Court would note in conclusion that the possibility of seeking a judicial declaration of paternity (Article 1:207 of the Civil Code) is now open to the applicant (see paragraph 25 above).

45.  In the light of these considerations, the Court concludes that Article 8 is not applicable in the instant case. Article 14 cannot therefore be relied on.

II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

46.  The Court, of its own motion, asked the parties to address the questions raised by the case under Article 13 of the Convention, which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

47.  The applicant was of the opinion that the domestic courts had denied him an effective remedy. They had not even established the facts. Thus, far from deciding the substance of his case, they had ruled that the legislature would have to step in before claims such as his could be decided on the merits. The Government, for their part, argued that there had been no violation of this provision, since the applicant had not been prevented from presenting his complaints before the domestic courts.

48.  In view of its above conclusion on the applicant's complaints under Articles 8 and 14 of the Convention, the Court finds that Article 13 is also not applicable in this case.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that Articles 8, 14 and 13 of the Convention do not apply in the present case.

Done in English, and notified in writing on 13 January 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr Loucaides is annexed to this judgment.

I agree with the majority that Articles 8, 14 and 13 of the Convention are not applicable in this case. However, my decision rests on the conclusion, on the basis of the material before the Court, that the applicant has not made his case.

The applicant argues that he is the unrecognised illegitimate child of P. and complains that he has been the victim of unjustified treatment under the  law inasmuch as, unlike “legitimate” or recognised “illegitimate” children, he was unable to inherit from his putative father, P. The complaints of the applicant are based on the presumption that he was in fact P.'s child. However, the evidence of that is in my opinion not strong enough to substantiate the applicant's allegation.

The available evidence, which the applicant relied on only after the death of P., appears to consist of the following:

(a)  The statement of the applicant's mother, who went on to say that she had not known any man other than P. until nine years after the applicant's birth and that P. referred to the applicant in public as “my son” or “my little boy”.

(b)  The fact, as stated, that P. made regular payments towards the applicant's care and upbringing, gave the applicant presents for his birthday, visited him and, together with the applicant's mother, went on day trips with him. The applicant called P. “Daddy”.

(c)  A statement made before the Court of Appeal by a friend of the applicant's mother, and the person who has been the applicant's
co-guardian, to the effect that they were convinced that P. was the applicant's biological father and that P. had never denied this fact but had, on the contrary, assured them that the applicant would be well provided for.

This evidence is not sufficient to convince me that the applicant is P.'s child. In this respect I also took into account the following facts of the case:

(a)  P. never lived together with the mother of the applicant and never recognised the applicant as his child.

(b)  During P's lifetime, the applicant never secured any written statement or even a clear and unambiguous admission from P. that he was in fact his father. While it may be so that P. called the applicant “my son” and “my little boy”, at this remove and taken out of context such apparent expressions of endearment cannot be persuasive.

(c)  The applicant formally raised the question of his being P.'s son for the first time through civil proceedings against K., P.'s undisputed nephew, who inherited his estate. Through these proceedings he was claiming inheritance rights. However, it is not apparent that the applicant ever sought to establish family ties of any kind while P. was alive.

In the circumstances, I find that the premise on which the applicant's complaints are based, namely that he was the child of P., is not established. Therefore the application ought to have been declared inadmissible, even though this would have amounted to a reversal of the previous decision by which the application was declared admissible. This course of action is made possible by Article 35 § 4 of the Convention, which provides that “The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings” (emphasis added; see, for example, Medeanu v. Romania (dec.), no. 29958/96, 8 April 2003).