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FIFTH
SECTION
CASE OF CUSTERS,
DEVEAUX and TURK v. DENMARK
(Applications
nos. 11843/03, 11847/03 and 11849/03)
JUDGMENT
STRASBOURG
3 May
2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In
the cases of Custers, Deveaux and Turk v. Denmark,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mrs S. Botoucharova,
President,
Mr P. Lorenzen,
Mr K. Jungwiert,
Mr R.
Maruste,
Mr J. Borrego Borrego,
Mrs R.
Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section
Registrar,
Having
deliberated in private on 3 April 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in three applications (nos. 11843/03, 11847/03 and
11849/03) against the Kingdom of Denmark lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a Dutch
national, Mr Vincent Custers, a French national, Mr Olivier
Deveaux, and an American national, Mr Lawrence Martin Turk (“the
applicants”), on 1 April 2003.
- The
applicants were represented by Mr Nicholas Symes, a lawyer practising
in Copenhagen and by Mr Jens Brøsted, an associate research
professor. The Danish Government (“the Government”) were
represented by their Agent, Mr Peter Taksøe-Jensen, of the
Ministry of Foreign Affairs, and their co Agent, Mrs Nina
Holst-Christensen, of the Ministry of Justice.
- The Dutch and French Governments, having been informed
of their right to intervene (Article 36 § 1 of the Convention
and Rule 61 § 2 of the Rules of Court), declared that they would
not submit any observations.
- The
applicants relied on Article 7 of the Convention, alleging that they
had been convicted of an act which at the time it was committed did
not constitute a criminal offence under national law.
- The
Chamber decided to join the proceedings in the three applications
(Rule 42 § 1).
- By
a decision of 9 May 2006, the Court declared the applications partly
admissible.
-
The applicants and the Government each filed further written
observations (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- In
1951 an American air base was established on the Dundas peninsula in
the Thule District of north-west Greenland. With the establishment of
an anti-aircraft artillery unit in 1953 the air base area was
expanded. It was reduced in size in the mid-1980s and in 2003.
- The
applicants were members of Greenpeace. In the summer of 2001 they
took part in an action around the Thule Air Base designed to draw
international attention to the use of a radar (the Thule Radar)
for the American missile defence programme and to collect information
on the environmental impact of the presence of the air base on the
Dundas peninsula.
- Before
the action in question, on 25 July 2001, two Greenpeace members had
had a meeting with the Chief of Police of Greenland, during which
they had been informed of the legislation relating to Thule Air Base
and the consequences of a possible refusal by the relevant
authorities of permission to visit the air base area.
- On
27 July 2001 Greenpeace requested permission to visit “the
Dundas peninsula around the Thule Air Base”. By fax of 30 July
2001 the Danish Ministry of Foreign Affairs informed Greenpeace that
Thule Air Base, including the Dundas area, was a “defence
area”, and that civilians could gain access to this area only
with permission from the Ministry of Foreign Affairs and the American
authorities. By fax of 2 August 2001 the Ministry of Foreign Affairs
refused Greenpeace permission to access the Dundas peninsula and
Thule Air Base.
- On
6 August 2001 the applicants and other Greenpeace activists arrived
off the coast of the Dundas peninsula by a vessel called the M/V
Arctic Sunrise. Some of the activists went ashore at the beach of
Dundas and put up a banner. They were ordered to leave the area
immediately by the police. The applicants, using a rubber dinghy,
landed at Savigssuaq, which is south of Thule Air Base. Thereafter
they walked approximately 30 km northwards overland to Shelter
7, to the east of the base, where they were arrested on 7 August 2001
at 8 p.m. and charged with trespassing.
- Shelter
7 is one of several emergency shelters built along a road almost
18 km in length running from the built-up part of the base area
to the Thule Radar. Emergency shelters have been built at intervals
of 1-2 km along the road to ensure that base personnel are able to
seek shelter in the event of sudden bad weather on their way out to
the radar facility. Shelter 7 is 10.7 km from the built-up part
of the Thule Air Base and 7.2 km from the Thule Radar.
- The
exact size of the defence area was disputed between the parties. The
Government maintained that the Thule Air Base comprised approximately
four hundred square kilometres at the relevant time. After the events
in question, on 20 February 2003, the area was reduced in size
and the Dundas peninsula became a non-prohibited area to which all
civilians could gain access without permission. The applicants
submitted that the exact size of the defence area was confidential
and thus unknown to the public.
- An
official map called “Sheet no. 76.V.1, Dundas, scale 1:250:000”
was produced by the Danish Geodetical Survey. The map bore the
following indications: “Place names, centres of population and
other details 1954”, “Corrections 1983” and
“Printed by the Danish Geodetical Survey 1983”. The
airfield was shown, but there was no indication of an air base.
A similar map was reproduced photographically by Saga Maps.
- Based
on the map by the Danish Geodetical Survey, another map was produced
and published as an annex to a report published in December 1994
entitled “Report on the relocation of the Thule Tribe in 1953”.
This map, (“the annex map”), had a bold line drawn on it
which, according to the Government, demarcated the Thule Air Base,
comprising a large area exceeding the area of the Dundas peninsula.
The applicants disputed this assertion, pointing out that the origin
of and reason for the line were unknown.
- In
2001 the Thule Air Base was not fenced off or marked with signs, save
for some “No Entry” signs by the harbour and on the road
leading from the airfield to the built-up part of the base.
- At
the time of their arrest the applicants were in possession of a
Global Positioning System (GPS device) and the official Saga map of
the area, on which they had marked nine different positions. In a
notebook found on one of the applicants the nine positions were
listed with the corresponding degrees of latitude and longitude and
the following descriptions: “initial landing” “radar
(E)”, “radar (W)” and “airstrip”. The
applicants were also carrying cameras and a camcorder. The police
seized a film containing photos taken by the applicants during their
walk. Some of the photos showed the applicants holding banners with
the wording “Stop Star Wars” and “No to new arms
race”, with some of the military facilities of the Thule Air
Base pictured in the background.
- Material
downloaded from the Greenpeace website at the relevant time contained
various statements, including the following: “But still inside,
two days into the Thule Peace Trek are three other activists, who
have been walking and camping in Arctic conditions since Monday, and
so far remain undetected” and an extract from a so-called
action line recording by the activist saying “We are now on the
second day of our walk ... it's been an intense couple of days, we've
been blasted by the wind, gotten cold every time we stopped, forded
deep icy cold rivers, walked across ice, but also had some real
beauty...”.
- The
applicants were released on 8 August 2001 at 6 p.m., after
indictments of the same date had been served on them. The charges
against them were detailed as follows:
“Violation of Article 69a of the Penal Code
and Article 132 § 2, taken together with [Article 132] §
1 and section 3(1)(d) of Executive Order no. 39 of 22 February
1967 on travel to and within Greenland (Bekendtgørelse om
rejser til og i Grønland) (“the Travel Order”)
in that, without permission having been granted to the environmental
organisation Greenpeace, [the applicants], using a rubber dinghy from
the vessel M/V Artic Sunrise, went ashore on 6 August 2001 in
the area around (ved) Thule Air Base, where they took pictures
with cameras and video cameras, and were found by the police at
Shelter 7 on 7 August 2001 at around 6.30 p.m.”
21. By judgment of 11 September 2001 given in absentia,
the applicants were convicted as charged by the High Court of
Greenland (Grønlands Landsret). They were each
sentenced to a fine of 5,000 Danish kroner (DKK)
(approximately 670 euros (EUR)). In handing down the
sentence, the court took into account the fact that, as Greenpeace
activists, the applicants had participated in a carefully planned
action. In addition, the notebook, the Saga map of the air base area,
a video film and fifty one photos had been confiscated. The
relevant parts of the High Court judgment stated:
“On the evidence, the court finds that [the
applicants] carried out the acts described in the indictment. As [the
applicants] did not obtain permission to enter the base area, as
required by section 3(1)(d) of Executive Order no. 39 of
22 February 1967 on travel to and within Greenland, they have
violated section 3 of the Order. As made clear by the
explanatory notes to Article 132 of the Penal Code, the Travel Order
has as its legal basis “established practice” within the
meaning of Article 131 of the Penal Code.
...
In view of the location of the base and considering that
the applicants, aiming for the base, had to walk several kilometres
across rough terrain and that access to the base requires special
permission under the Travel Order, the court finds that the base is a
“place not freely accessible” for the purposes of Article
69a (i) of the Penal Code. Accordingly, and as their presence was
unauthorised, as stated above, [the applicants] are found guilty of
having violated Article 69a (i) of the Penal Code.”
- The
applicants appealed to the High Court of Eastern Denmark (Østre
Landsret) before which they argued, as they had done before the
first instance court, that the act in question did not
constitute a criminal offence.
- According
to them, Executive Order no. 39 of 22 February 1967, relied on
by the prosecution, did not have legal authority. Concerning
Article 69a (i) of the Penal Code, they submitted that it could
not be established whether or not they had trespassed, as the limits
of the military area had never been officially defined. The
applicants further maintained that lay judges should have
participated in the proceedings before the first instance court.
However, the latter complaint was later withdrawn.
- Before
the High Court of Eastern Denmark the prosecution submitted the annex
map in support of the charge that the applicants had entered a “place
not freely accessible” within the meaning of Article 69a of the
Penal Code.
- By judgment
of 3 October 2002 the High Court of Eastern Denmark confirmed
the first-instance court's judgment stating, inter alia:
“On the evidence produced before the High Court,
[the applicants] are found guilty of a violation of section 3(1)(d)
of Executive Order no. 39 of 22 February 1967 on the grounds stated
in the judgment. As [the applicants] thus gained unauthorised access
to a place not freely accessible, they have also violated Article 69a
(i) of the Penal Code. In view of the nature of the area, this
violation is not insignificant.”
- The
applicants' request of 19 March 2003 for leave to appeal against the
judgment to the Supreme Court was refused by the Leave to Appeal
Board (Procesbevillingsnævnet) on 5 October 2004.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Executive Order no. 39 of 22 February 1967
- Executive
Order no. 39 of 22 February 1967 on travel to and within
Greenland (Rejsebekendtgørelsen) (“the Travel
Order”), as amended by Executive Order no. 266 of 21 May 1976,
was issued by the then Ministry of Greenland. It was promulgated in
the 1967 Greenland Gazette (Nalunaarytit) (p. 20).
- Pursuant
to section 1 of the Travel Order, any person may enter or leave
Greenland without limitation, subject to the restrictions laid down
in the Travel Order and in the Aliens' Access to Denmark Act (Lov
om udlændinges adgang til landet m.v.) and the provisions
enacted under the latter.
- Section
3 of the Travel Order provides detailed rules on entry to and
residence in the defence areas in Greenland established in accordance
with the agreement on the defence of Greenland signed on 27 April
1951 by the Governments of the Kingdom of Denmark and the United
States of America under the North Atlantic Treaty. Section 3(1)(d) of
the Order reads as follows:
Section 3(1)(d)
“... In order to obtain access to the defence
areas, persons other than those referred to in paragraphs (a), (b),
and (c) [certain military personnel, etc.] must obtain permission for
each trip from the Ministry for Greenland or – subject to the
latter's authorisation – from other Danish State authorities,
in addition to permission from the relevant military authority if
required.”
- Breaches
of the Travel Order are punishable by a fine under section 5 of
the Order taken in conjunction with Article 117 § 3 of the Penal
Code for Greenland (Act no. 55 of 5 March 1954 (see below)).
The
Travel Order entered into force on 1 April 1967 in accordance with
section 6(1).
- At
the same time, Executive Order no. 79 of 22 March 1954 issued by the
Prime Minister's Office on travel to and within Greenland (the 1954
Travel Order), as amended by the Executive Orders of 12 May 1961 and
16 July 1955 on permission to travel through the defence areas,
was repealed under section 6(2) of the Travel Order.
- Apart
from the applicants' criminal case, the punitive sanctions provided
for by Executive Order no. 39 of 22 February 1967 have never been
applied. According to documents from the Public Records Office
(Rigsarkivet) (Ministry of Greenland file no 0400-06-01
containing correspondence from 1969 between the Danish military
liaison officer at Thule Air Base and the Ministry of Greenland), a
woman was found to have travelled to Thule Air Base on 14 February
1969 on the false pretext of visiting a married couple at Dundas. It
turned out that she was not visiting any local inhabitants, but a
male worker at Thule Air base, who was forced to resign his job at
the base as a result of the incident. Although it appears that the
woman breached the Executive Order by giving false information in
order to gain access to the base, no charges were brought against
her.
The 1954 Travel Order
-
Executive Order no. 79 of 22 March 1954 on travel to and within
Greenland entered into force on 1 April 1954. Section 1 stipulated
that the rules laid down in the Order applied to Danish nationals'
entry to and residence in Greenland.
- The
Executive Order introduced for the first time a provision on access
to defence areas in Greenland. Hence, under section 5(1) of the
Order, military and civilian personnel whose presence in the defence
areas or on other sites in Greenland was necessary in connection with
activities pursuant to the 1951 agreement between the Governments of
the Kingdom of Denmark and the United States of America on the
defence of Greenland, and members of their families, were allowed to
enter and leave the defence areas or other such sites in Greenland.
- According
to section 5(2) of the Executive Order, persons other than those
referred to in subsection (1) could gain access to the defence areas
in Greenland established pursuant to the agreements referred to in
subsection (1), and which the Government of the United States of
America were responsible for operating and maintaining, only if they
had obtained prior special permission from the Prime Minister's
Office or from the Governor of Greenland under the authority of the
Prime Minister's Office, in addition to permission from the relevant
military authority if required.
- Breaches
of Executive Order no. 79 of 22 March 1954 were punishable by a fine
under section 6.
- Executive
Order no. 79 of 22 March 1954 on travel to and within Greenland
entered into force on 1 April 1954 in accordance with section 7(1).
At the same time, under section 7(2) of the Order, the Executive
Order issued by the Prime Minister's Office on 20 May 1948
on travel to and within Greenland was repealed.
The 1948 Travel Order
- Section
1 of the Executive Order of 20 May 1948 on travel to and within
Greenland, issued by the Prime Minister's Office, specified that
unless otherwise provided by special treaty between Denmark and other
countries or by other special provision, travels to and within
Greenland were subject to special permission from the Danish
Government.
- Under
section 11(1) of the Order, breaches of its provisions were
punishable by a fine.
The
1954 Penal Code for Greenland and
criminal-law
practice before its entry into force
- The
Danish Penal Code does not apply in Greenland. Before 1954, the
criminal law of Greenland consisted solely of the practice developed
by the district courts of Greenland on the basis of fragmentary
provisions in old legislation. Greenland had colonial status and was
a predominantly closed country before the revision of the Danish
Constitution in 1953. The Government submitted that, until the 1954
Travel Order entered into force, neither Danes nor foreigners had had
access to the country without special permission, under provisions
dating back as far as 1736. The applicants disputed this, arguing
that Greenland had been opened up as a result of the Greenlandic
reforms laws of 1950.
- The
1953 revision of the Danish Constitution extended its scope of
application to all parts of the Danish realm, including Greenland.
- With
the Penal Code for Greenland (Act no. 55 of 5 March 1954), most
elements of the practice developed by the districts courts of
Greenland were given statutory form. The Penal Code was adopted on 19
February 1954 and became law by royal assent on 5 March 1954. It
entered into force on 15 July 1954.
- Under
Article 1 of the Penal Code for Greenland, the sanctions authorised
by the Code may be imposed only for offences referred to in the Code
or equivalent offences (the principle of legality).
- Article 69a reads as follows:
Article 69a
“Any individual who without good cause
(i) obtains access to another person's house or any
other place not freely accessible (skaffer sig adgang til fremmed
hus eller andet ikke frit tilgængeligt sted), or
(ii)
fails to leave another person's house having been requested to do so
may be convicted of trespassing.”
- Article 117 contained the following provision:
Article 117
The
rules on fines, forfeiture and compensation and other lesser
sanctions laid down by provisions still in force shall remain in
force subject to the amendments which follow from Parts 1 to 4 and
22 to 34 of this Code. Negligent breaches of such provisions shall
give rise to liability to the same extent as hitherto.
Provisions
that are issued in accordance with established practice
(bestemmelser, som udstedes i medfør af hidtil gældende
praksis), including bye-laws issued by the Provincial Council
(Landsrådet) and local authorities, may lay down rules
on the imposition of cautions, fines, ouster and exclusion orders,
forfeiture and confiscation, and disqualification from carrying on a
trade or operating vessels or vehicles and from other similar rights
based on official authorisation.
- The
explanatory notes to Article 117 stated as follows:
“This provision, which has been prepared under the
authority of the Provincial Council of Greenland, preserves a number
of administrative rules on fines, forfeiture and compensation and
other lesser sanctions. These represent various rules with a
public-law content. The provision also confers legal authority to
issue such rules in accordance with established practice. Although it
has been found necessary in Article 1 of the Bill to lay down
the principle, which is new for Greenland, that the imposition of
criminal-law sanctions must be authorised by statute, it has not been
considered possible to fully implement the principle during the
period of transition in which Greenland currently finds itself in
terms of its economy, society and culture.”
- Act
no. 105 of 27 March 1963, which entered into force on 1 July 1963,
amended the provisions of Article 117 § 2 of the Penal Code,
inserting a new Article 117 § 3.
Revision of the Penal Code in 1978
- Act
no. 292 of 8 June 1978 revised the provisions of the Penal Code for
Greenland concerning sanctions. A new Article 131 § 3 was
inserted, which read as follows:
Article 131 § 3
“Regulations that are issued in accordance with
established practice (i forskrifter, der udstedes i
overensstemmelse med hidtil gældende praksis),
including bye-laws issued by the Provincial Council and local
authorities, may stipulate that violations of such regulations are
punishable by fines, forfeiture and confiscation and
disqualifications. Such sanctions shall then be applied in accordance
with the rules in Parts 1 to 4, 22 to 24 and 30 to 33 of this Code.”
The
Act entered into force on 1 January 1979.
Amendment of the Penal Code in 2001
- By Act no. 335 of 16 May 2001, which entered into
force on 1 June 2001, the Penal Code for Greenland was once more
amended. A new Article 132 was inserted, which read as follows:
Article 132
- The
Minister of Justice may issue regulations on access to certain parts
of Greenland, and the conditions [for such access], including the
inland ice, the National Park in Northern and Eastern Greenland and
access to and from the defence areas established pursuant to the
agreement of 27 April 1951 between the Governments of Denmark and the
United States on the defence of Greenland.
- With
regard to intentional or negligent breaches of the provisions set out
in regulations adopted under subsection 1, rules may be laid down
imposing measures as set out in Article 85 [for instance, fines and
confiscation].”
- The
preparatory notes to the Act (L130, introduced on 6 December
2000) stated, among other things (section 3.1):
“The Executive Order on travel to and within
Greenland [Order no. 39 of 22 February 1967], issued by the
then Ministry for Greenland, has as its legal basis “established
practice” within the meaning of Article 131 § 3 of the
Penal Code. The required amendments [to the Penal Code, for example,
the insertion of Article 132] were not undertaken earlier by means of
administrative measures, since the new rules in question could hardly
be issued under the authority of the said provision [Article 131
§ 3 of the Penal Code].”
- It
appears from the explanatory notes to the Bill that the purpose of
inserting the enabling provision in Article 132 of the Penal Code was
to provide a legal basis for updating rules in that field and, in
that connection, to expand the authorities' right to regulate
expedition activities in Greenland for the particular purpose of
limiting the number of cases where rescue operations had to be
launched and of facilitating the implementation of rescue operations.
- At
the time of the events in the present case the Minister of Justice
had not issued any regulations under Article 132 of the Penal Code.
- Since
the entry into force on 15 July 1954 of the Penal Code for
Greenland (Act no. 55 of 5 March 1954), there have been no examples
of executive orders issued “in accordance with established
practice” taking Article 117 § 2 (later Articles 117
§ 3 and 131 § 3 respectively) as their legal basis, with
the exception of Executive Order no. 39 of 22 February 1967 on
travel to and within Greenland. Various local bye-laws
(Politivedtægter), however, have been issued on the
basis of this legal authority and by 2005 charges had been brought in
136 cases concerning violations of these bye-laws.
THE LAW
- The applicants complained that they had been convicted
of an act which at the time it was committed did not constitute a
criminal offence under national law. They relied on 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. The parties' submissions
The Government's observations
- The
Government maintained that the applicants' conviction had been in
accordance with the rule-of law requirement of Article 7 of
the Convention.
- Firstly,
Executive Order no. 39 of 22 February 1967 on travel to and
within Greenland was sanctioned by Article 131 § 3 of the Penal
Code. The legal authority contained in the latter provision had been
introduced as far back as the 1954 Penal Code (originally by Article
117 § 2) and had been maintained in the 1978 revision of the
Code (Article 131 § 3). As to the original Article 117 §
2 of the Penal Code, the Government recalled that it had entered into
force on 15 July 1954, three and a half months after
Executive Order no. 79 of 22 March 1954 on travels to and
within Greenland had been issued by the Prime Minister's Office.
According to the preparatory notes to the Penal Code, it had been
considered necessary to insert Article 117 as a transitional measure
derogating from the principle of legality laid down in Article 1 of
the Code. The Government submitted that owing to the special
situation in Greenland it was not uncommon for transitional rules to
remain effective for a longer period than originally anticipated at
their adoption.
- Hence,
Article 131 § 3 conferred legal authority to issue
regulations providing for fines and similar measures in accordance
with “established practice” as a derogation from the
principle of legality laid down in Article 1 of the Penal Code.
- Secondly,
the 1967 Travel Order was accessible to the public as it had been
promulgated in the 1967 Greenland Gazette (Nalunaarytit),
(p. 20).
- Thirdly,
in the Government's view, the provisions of the 1967 Travel Order
were sufficiently precise to enable the applicants to foresee the
consequences of trespassing in the defence area. Furthermore, they
had been told expressly by the Chief of Police of Greenland on 25
July 2001 that the defence area, including the Dundas peninsula, was
covered by the prohibition on entry. In addition, they had been
informed by the Ministry of Foreign Affairs in faxes of 30 July and
2 August 2001 that the entire Dundas peninsula was part of the
defence area, and that the applicants did not have permission to
enter that area. Accordingly, it had been absolutely clear to the
applicants that by penetrating the defence area they would be acting
in breach of section 3(1)(d) of the Travel Order.
- Fourthly,
the Travel Order provided adequate safeguards against arbitrary
interference with the applicants' rights, since it stated clearly
that no one was allowed access to the defence area without permission
from the military authorities and the Danish authorities.
- Lastly,
the fact that the punitive sanctions provided for by Executive Order
no. 39 of 22 February 1967 had not been applied in any criminal cases
other than the one in question could not be construed as reluctance
to apply those sanctions. In the past, nobody else had been
discovered violating the Order, which was not surprising given the
prohibited area's remote and isolated location. Given the arctic
weather conditions and the location of the Thule Air Base, it would
take a great deal of planning and preparation to venture into the
prohibited area and bypass the regulation. The gear carried by the
applicants, including their Global Positioning System equipment and
their detailed map of the area, seen in the context of their stated
intent to carry out an action to draw international attention to the
use of the Thule Radar for the American missile defence programme,
therefore showed that they had not wandered into the prohibited area
unknowingly and by chance.
- In
these circumstances, the Government submitted, the provisions of
Executive Order no. 39 of 22 February 1967 were in
accordance with the rule of law. The subsequent amendment to the
Penal Code inserting a new Article 132 did not alter this finding,
since the sole purpose of the latter was to provide a legal basis for
future amendments to the Travel Order which would expand the
authorities' right to regulate expedition activities in Greenland for
the particular purpose of limiting the number of rescue operations
having to be launched.
- With
regard to Article 69a of the Penal Code for Greenland, the Government
submitted that this provision had its equivalent in the Danish Penal
Code which, according to case-law, could be interpreted to mean that
unfenced areas without signs could also be considered as “place[s]
not freely accessible”. Again, the Government pointed out that
the applicants had been told expressly by the Chief of Police of
Greenland on 25 July 2001 that the defence area, including the Dundas
peninsula, was covered by the prohibition on entry and, in addition,
had been informed by the faxes of 30 July and 2 August 2001
from the Ministry of Foreign Affairs that the entire Dundas peninsula
was part of the defence area, and that they did not have permission
to enter that area.
- The
limits of the defence area were also shown on official maps of the
area, which the applicants could have obtained. One such map, the
annex map published in 1994, had formed part of the case file during
the domestic proceedings.
- Moreover,
the Thule Air Base was marked with “No Entry” signs by
the harbour and on the road leading from the airfield to the built-up
part of the base. Accordingly, anyone entering the area by the normal
access routes, namely by boat or plane, would know immediately that
they were entering a prohibited area.
- The
Government reiterated that the applicants had gone ashore at
Savigssuaq, south of the air base, and had subsequently walked
overland by a route located inside the defence area, to Shelter 7,
situated to the east of the built-up part of the base. The careful
planning and the particular circumstances of the Greenpeace action
clearly demonstrated that the applicants had been in no doubt at the
time of their arrest that they were inside the prohibited area.
- Against
this background, the Government contended that the applicants must
have been aware that their penetration of the defence area without
permission constituted a violation of Article 69a of the Penal Code.
The applicants' observations
- The
applicants maintained that the act for which they had been prosecuted
did not constitute offences under national or international law at
the time they were committed, and that their convictions had
therefore been in breach of Article 7 § 1 of the Convention.
More specifically, they submitted that they had been convicted under
Executive Order no. 39 of 22 February 1967 on travel to and
within Greenland, which did not have legal authority, and that they
had been convicted of trespassing under Article 69a of the Penal Code
although they could not have foreseen whether the area they had
entered was freely accessible or not.
- The
applicants pointed out that a breach of the 1967 Travel Order was
punishable by a fine under section 5 taken in conjunction with
Article 117 § 3 (former Article 117 § 2) of the
Penal Code for Greenland (Act no. 55 of 5 March 1954). The latter
provision conferred legal authority to issue regulations providing
for fines and similar measures to be imposed in accordance with
“established practice”. However, it had been inserted as
a transitional measure derogating from the principle of legality laid
down in Article 1 of the Penal Code of 1954 and, accordingly, had to
be construed in a strict and narrow manner. Moreover, since a
transitional derogation implied a short duration, it was doubtful
whether Article 117 § 3 of the Penal Code could be
used as the basis for a criminal sanction imposed almost fifty years
after its adoption.
- More
importantly, the Travel Order and any other executive order could
have legal validity only if it had a legal basis in an enabling act.
Although it had entered into force on 15 July 1954, the Penal Code
was adopted on 19 February 1954 and became law by royal assent on
5 March 1954. It was Executive Order no. 79 of
22 March 1954 on travel to and within Greenland, the
predecessor to Executive Order no. 39 of 22 February 1967, which
for the first time introduced a rule (section 5 at the relevant
time) concerning access to the defence areas in Greenland. This new
rule had not been put before Parliament in connection with the
latter's adoption of the Penal Code and had entered into force on
1 April 1954, that is, after the adoption of the
Penal Code. Accordingly, the applicants submitted, section 5 of
Executive Order no. 79 of 22 March 1954 had to be
classified as a subsequent new regulation for the purposes of the
then Article 117 § 2 of the Penal Code, as
opposed to “established practice”, which could refer only
to practice accessible and known to the legislator at the time of
adoption of Article 117 § 2 of the Penal Code.
- Consequently,
Executive Order no. 39 of 22 February 1967, which came
afterwards, could not have had any legal basis either in Article 117
of the Penal Code. The applicants alleged that the Ministry of
Greenland had been aware of this fact at the time the Order was
issued; this, in their view, explained why there had been a
reluctance to apply its punitive sanctions until the present case.
- With
regard to Article 69a of the Penal Code for Greenland, the applicants
observed at the outset that there were problems with its translation.
As to its interpretation, they agreed that fencing was not required
to make an area “not freely accessible”; nevertheless,
the limits of the area had to be defined.
- In
this respect they maintained that it had not been established that
they had actually entered the restricted military defence area since,
owing to a policy of secrecy, no maps were available officially
demarcating the air base. Neither the official map drawn up by the
Danish Geodetical Survey nor the Saga map which the applicants had in
their possession at the time of their arrest showed any military
base. As for the annex map that was submitted during the criminal
proceedings and which contained a bold line supposedly demarcating
the Thule Air Base, the applicants emphasised that the origin of and
reasons for the line were unknown and were not indicated anywhere.
Moreover, the annex map emanated from a report on the relocation of
the Thule Tribe in 1953 which was not easily accessible.
- The
applicants also pointed out that although two members of Greenpeace
had had a meeting with the Chief of Police of Greenland, neither of
them was among the applicants; in any event, the restricted area had
been defined only as Thule Air Base. Similarly, the Ministry of
Foreign Affairs had denied Greenpeace permission to access the Dundas
area and Thule Air Base. The area in which the applicants had been
arrested, however, had not been pinpointed or in any way designated
as a restricted area to Greenpeace, the applicants or the public in
general.
- Similarly,
during the domestic proceedings the applicants had raised no
objections to the facts described in the indictment as such, since it
had not defined the defence area but referred to the area around
Thule Air Base in general as opposed to the area inside Thule Air
Base.
B. The Court's assessment
1. General principles
- The
Court reiterates that Article 7 of the Convention embodies, in
general terms, the principle that only the law can define a crime and
prescribe a penalty (nullum crimen, nulla poena sine lege) and
prohibits in particular the retrospective application of the criminal
law where it is to an accused's disadvantage (see Kokkinakis v.
Greece, judgment of 25 May 1993, Series A no.
260-A, p. 22, § 52). While it prohibits in particular extending
the scope of existing offences to acts which previously were not
criminal offences, it also lays down the principle that the criminal
law must not be extensively construed to an accused's detriment, for
instance by analogy. It follows that offences and the relevant
penalties must be clearly defined by law. This requirement is
satisfied where the individual can know from the wording of the
relevant provision and, if need be, with the assistance of the
courts' interpretation of it, what acts and omissions will make him
criminally liable (see, among other authorities, Streletz, Kessler
and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98,
§ 50, ECHR 2001 II, and Cantoni
v. France, judgment of 15 November 1996, Reports of
Judgments and Decisions 1996-V, p. 1627, § 29).
- When
speaking of “law” Article 7 alludes to the very same
concept as that to which the Convention refers elsewhere when using
that term, a concept which comprises statute law as well as case-law
and implies qualitative requirements, including those of
accessibility and foreseeability (see, among other authorities,
Achour v. France [GC], no. 67335/01, §§ 41 43,
ECHR 2006 ...).
2. Application of the above principles
- In
the present case the domestic courts found that the applicants had
violated section 3(1)(d) of Executive Order no. 39 of
22 February 1967 on travel to and within Greenland and Article
69a of the Penal Code.
- With
regard to the Travel Order the High Court of Greenland stated, among
other things: “...As [the applicants] did not obtain permission
to enter the base area, as required by section 3(1)(d) of
Executive Order no. 39 of 22 February 1967 on travel to and
within Greenland, they have violated section 3 of the Order. As
made clear by the explanatory notes to Article 132 of the Penal
Code, the Travel Order has as its legal basis 'established practice'
within the meaning of Article 131 of the Penal Code”.
- The
wording of section 3 (1)(d) of the Executive Order no. 39 of
22 February 1967 on travel to and within Greenland was the
following “... In order to obtain access to the defence areas,
persons other than those referred to in paragraphs (a), (b), and (c)
[certain military personnel, etc.] must obtain permission for each
trip from the Ministry for Greenland or – subject to the
latter's authorisation – from other Danish State authorities,
in addition to permission from the relevant military authority if
required.”
- Breaches
of Executive Order no. 39 of 22 February 1967 on travel to
and within Greenland were punishable by a fine under section 5
of the Order taken in conjunction with Article 117 § 3 of the
Penal Code for Greenland (Act no. 55 of 5 March 1954). Thus,
while the existence of domestic case-law could have contributed to
the foreseeability of the application of the Travel Order's punitive
sanction (see, mutatis mutandis, Pessino v. France,
no. 40403/02, §§ 33-35, 10 October 2006), in the
Court's opinion, it was predictable that the applicants risked being
sentenced to a fine if they entered the defence area without a
permission. Moreover, Greenpeace had already been warned thereof by
the Chief of Police of Greenland at the meeting on 25 July 2001.
- The
Executive Order no. 39 of 22 February 1967 on travel to and
within Greenland was promulgated in the 1967 Greenland Gazette.
- In
view thereof, the Court considers that the Executive Order no. 39 of
22 February 1967 on travel to and within Greenland and the
consequences of breaching it did satisfy the requirements of
accessibility and foreseeability within the meaning of Article 7 of
the Convention.
- It
remains to be determined whether it also had sufficient legal basis
in domestic law. The Court reiterates in this respect that it will
not question the national courts' interpretation of domestic law
unless there has been a flagrant non-observance or arbitrariness in
the application of the said provisions (see, inter alia,
Société Colas Est and Others v. France,
no. 37971/97, § 43, ECHR 2002-III and, mutatis
mutandis, Lavents v. Latvia, no. 58442/00,
§ 114, 28 November 2002).
- Originally, it was Article 117 § 2 of the Penal
Code (Act no. 55 of 5 March 1954) which conferred legal
authority to enact regulations providing for fines and similar
measures to be imposed in accordance with “established
practice”, as an exception to the principle of legality laid
down in Article 1 of the Penal Code. It will be recalled that Article
117 § 2 of the Penal Code commenced as follows: “Provisions
that are issued in accordance with established practice”.
Moreover, the explanatory note to the said provision stated: “This
provision, which has been prepared under the authority of the
Provincial Council of Greenland, preserves a number of administrative
rules on fines, forfeiture and compensation and other lesser
sanctions. These represent various rules with a public-law content.
The provision also confers legal authority to issue such rules in
accordance with established practice. Although it has been found
necessary in Article 1 of the Bill to lay down the principle,
which is new for Greenland, that the imposition of criminal-law
sanctions must be authorised by statute, it has not been considered
possible to fully implement the principle during the period of
transition in which Greenland currently finds itself in terms of its
economy, society and culture.”. Thus, the Court observes, it
was clear that Article 117 § 2 of the Penal Code provided a
legal basis to issue future rules in a transitional period in
accordance with “established practice” and that
accordingly the Executive Order no. 39 of 22 February 1967 had a
sufficient legal basis in Article 117 § 2 of the Penal Code if
these conditions were fulfilled.
- In
the first respect, the Court observes that in 1978 the Penal Code for
Greenland was revised introducing for example a new Article 131 §
3. The said provision conferred the exact same legal authority to
enact regulations providing for fines and similar measures to be
imposed in accordance with “established practice” as its
predecessor (Article 117 § 2 of the 1954 Penal Code).
Accordingly, although being a transitional measure derogating from
the principle of legality in Article 1 of the Penal Code for
Greenland, in 1978 the Parliament approved the maintenance of such a
transitional measure conferring legal authority to enact regulations
providing for fines to be imposed in accordance with “established
practice”.
- In
these circumstances, recalling that the Executive Order no. 39 of
22 February 1967 was issued eleven years before the Parliament's
approval of the continued legal authority to issue executive orders
in accordance with established practise, and having regard to the
discretion that the national authorities necessarily have in these
matters, the Court is satisfied that the transitional period still
existed when the Executive Order no. 39 of 22 February 1967 was
issued.
- As
to the question whether section 3 (1)(d) of the Executive Order no.
39 of 22 February 1967 was in accordance with “established
practice”, it will be recalled that the first Travel Order from
1948 specified that travel to and within Greenland was subject to
special permission from the Danish Government. The subsequent Travel
Order from 1954 abandoned the general requirement that travel to and
within Greenland necessitated a special permission, but introduced a
provision according to which access to defence areas in Greenland was
made conditional on a prior special permission from the Prime
Minister's Office or from the Governor of Greenland under the
authority of the Prime Minister's Office, in addition to permission
from the relevant military authority if required. The Travel Order
from 1967 simply repeated that in order to obtain access to the
defence areas in Greenland, persons (other than certain military
personnel) had to obtain permission for each trip from the Ministry
for Greenland or – subject to the latter's authorisation –
from other Danish State authorities, in addition to permission from
the relevant military authority if required. Accordingly, section 3
(1)(d) of the Executive Order no. 39 of 22 February 1967
did not impose any new or further restrictions than those set out in
“established practice”. That was not the case, however,
when in 2001 new restrictions on travel to and within Greenland were
imposed, namely as regards expedition activities in Greenland, which
limited the freedom that had been in force since 1954. Accordingly,
they had to be adopted through an amendment of the Penal Code.
- Taking
all these factors together, the Court considers that the Executive
Order no. 39 of 22 February 1967 did not lack
sufficient legal basis in domestic law or failed to satisfy the
requirements of accessibility and foreseeability.
- With
regard to the applicants' conviction for trespassing within the
meaning of Article 69a of the Penal Code, the crucial issue is
whether the applicants could have foreseen that the area that they
had entered was “not freely accessible”.
- The
Court observes that it was not in dispute that fencing around Thule
Air Base was not required to make the area “not freely
accessible”. Nor was it in dispute that the air base was marked
with “No Entry” signposts by the normal access routes,
namely by the harbour and on the road leading from the airfield to
the built up part of the base.
- The
applicants chose, however, not to enter the area by the normal access
routes. Thus, although they arrived off the coast of the Dundas
peninsula by boat, they did not land on the Dundas peninsula.
Instead, using a rubber dinghy, they landed at Savigssuaq, south of
Thule Air Base, an area that was not included in the defence area.
From there, the applicants walked approximately 30 km north overland
to Shelter 7, where they were arrested on 7 August 2001 and
charged with trespassing.
- The
exact size of the defence area was disputed between the parties. The
applicants argued that there were no maps available officially
demarcating the air base. The Government argued that the Thule Air
Base was clearly demarcated on the so-called annex map which the
applicants could easily have obtained. The Court observes that the
applicants were in possession of an official map, namely a Saga map,
which was a photographic reproduction of the official “Sheet
no. 76.V.1, Dundas, scale 1:250:000” produced by the Danish
Geodetical Survey. Both maps indicated, among other things, the
Dundas peninsula and the airfield. There was no indication of the
Thule Air Base, the built up part of the base, the Thule
Radar, the shelters or the road leading from the airfield to the
built up part of the base. Moreover, leaving aside the origin of
and reasons for the line drawn on the annex map which allegedly
demarcated the defence area, the map in question was an annex to a
report published in December 1994 and entitled “Report on the
relocation of the Thule Tribe in 1953”. Accordingly, in the
Court's view, the applicants could not have been expected to obtain
this map in preference to or in addition to the official map of the
area they already possessed.
- The
Court considers, however, despite the lack of indication of Thule
Air Base on the official maps, that the applicants could not be
unaware that they were on the base area when they were arrested by
the police on 7 August 2001.
- It
notes that the applicants were members of Greenpeace and that the
purpose of their action was to draw international attention to the
use of the Thule Radar for the American missile defence
programme, and to collect information on the environmental impact of
the presence of the air base on the Dundas peninsula. Thus, the
applicants indisputably had the intention of approaching the Thule
Radar and the air base. The applicants were arrested at shelter 7,
situated on a road, 10.7 km to the east of the built up
part of the Thule Air Base and 7.2 km west of the Thule Radar.
In the Court's view it must have been clear to the applicants that
the Thule Radar and the emergency shelters built along the road,
running 18 km in length from the build-up part of the base to the
Thule Radar, were part of the defence area. That they were aware of
having entered the base area is furthermore confirmed by the fact
that the applicants, who had made thorough planning of their trip,
had a GPS device, that the Greenpeace website
at the relevant time stated: “But still inside, two days
into the Thule Peace Trek are three other activists, who have been
walking and camping in Arctic conditions since Monday, and so far
remain undetected”, and finally by the
photos taken by the applicants showing them holding banners with some
of the military facilities of the Thule Air Base visible in
the background.
- In
these circumstances, the Court considers that the applicants could
have foreseen that the area they had entered was “not freely
accessible” within the meaning of Article 69a of the Penal
Code.
- Having
regard to all these considerations, the Court concludes that the
applicants' act did constitute an offence defined with sufficient
clarity and foreseeability in Danish law.
- Accordingly,
there has been no violation of Article 7 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 7 of
the Convention.
Done in English, and notified in writing on 3 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Snejana Botoucharova
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Mr J.
Borrego Borrego is annexed to this judgment.
S.B.
C.W.
CONCURRING OPINION OF JUDGE BORREGO BORREGO
I
agree with the majority that, in this case, there has been no
violation of Article 7 of the Convention.
Nevertheless,
I have to say that I cannot share the majority's firmness concerning
the quality of the law and the applicants' entry into the area of the
military base.
In my
opinion, it is doubtful whether the Travel Order of 1954 could be
considered “established practice” within the meaning of
Article 117 § 2 and whether it constitutes a sufficient legal
basis in domestic law as regards the requirements of accessibility
and foreseeability.
I
also have doubts with regard to the place where the applicants were
arrested, as it is not clear whether this arrest took place inside
the air base or close to it, for there is no evidence of an
indisputable demarcation on a public map.
However,
being a minority of one, I have decided to vote with the majority in
spite of my doubts.
