TERRORISM, VICTIMS
AND INTERNATIONAL CRIMINAL
RESPONSIBILITY
Collective work realized by S.O.S. Attentats, S.O.S. Terrorism
Under the
editorship of Ghislaine Doucet
With
financial support from
the
European Commission GROTIUS II Programme
the
French minister of Foreign Affairs
the French Région Ile de
France
in
partnership with
The Irish Centre for Human Rights of Galway
(National University of Ireland)
&
The International Institute of Higher Studies in
Criminal Sciences of Syracuse (Italy)
Book
available
in
English and French
Web
versions in Spanish and Italian
& Abstract
4 Table of Contents
* Order Form
? Forum
What are the new threats of terrorism nowadays?
How to punish authors, silent partners and
financers of terrorist acts, while respecting both the rights of victims as
well as those of defenders?
What is the real degree of cooperation against
terrorism at the European and universal level?
What are the statute and the role of victims in
the various domestic legislation of the European Union Member States?
Who is accountable for the decisions or lack of
position that have led to the oblivion of victims and impunity of rulers?
What kind of solution can be suggested, knowing
that participation to trials is a major step for the reconstruction of victims?
Those are some of the questions that
34 experts in International Relations or International Criminal Law are
answering in this book.
This common book being a follow up to the Livre
Noir published by SOS Attentats, SOS Terrorism in
2002, in introduction to the International
Symposium on Terrorism and International Criminal Responsibility, held in
Paris, on February 5, 2002; comprises various points of view. Among them, SOS
Attentats, SOS Terrorism assertion that "in front of terrorism
globalization, we have to harmonize the judicial response"; which appears
like one of the main objectives.
An international crime such as terrorism cannot
be kept out from the International Criminal Court jurisdiction.
With this book, SOS Attentats, SOS Terrorism aims at
providing European and International leaders, with possible solutions as well
as reaching an effective recognition to victims’ rights, in full respect with
the rule of law.
PREFACE, Françoise Rudetzki
FOREWORD, M. Cherif Bassiouni
CHAPTER I : LAW IN FRONT OF TERRORISM
Section 1: Terrorism, current threats
è Risk,
terrorism and society: new issues
Patrick Lagadec, Director of Research at the Ecole Polytechnique
(Paris). Member of the Governing Council of the European Crisis of the
Management Academy
è Terrorism
and weapons of mass destruction
Corinne Lepage, French
attorney and member of the Paris Bar; Former Minister; Professor, Institut
d'Etudes Politiques; President, CAP 21
è Terrorism and religion: continuity
and change in political violence
Jean-François Mayer
(Historian, Lecturer at the University of Fribourg (Switzerland), Editor of the
web sites terrorisme.net & religioscope.info
è Islam, secularism and terrorism: justifying the use of force in the
name of Islam
Abdoullah Cisse, Professor and Dean of Faculty
of Law and Political Sciences, Dakar
è The state of the Islamist
terrorist threat
Jean-François Ricard Senior Investigating Judge, Tribunal de grande
instance de Paris
Section 2: Punishing terrorism, a challenge for the 21st
century
1. Sanctions and International Cooperation
Denise Sorasio, Director,
Justice and Home Affairs - External Relations and Enlargement, Directorate
General for Justice and Internal Affairs European Commission
è The judicial cooperation
within the European Union in the fight against Terrorism
Frédéric Baab, Liaison
Magistrate in Berlin, Attached to the French Ministry of Foreign Affairs
è The United Nations and the
fight against terrorism: legal and criminal aspects
Jean-Paul Laborde, Chief,
Terrorism Prevention Branch, United Nations Office on Drugs and Crime
è Terrorism: legal framework
in the African Union
Roch Gnahoui David, Senior
lecturer, holder of an Agregation of the Department of Law of the UCAD – Dakar,
Senegal
2. Security Aspects and Human
Rights: a fair balance between the Victim's Rights and the Defense's Rights
è What criminal procedure
should govern terrorist offenses: ordinary or special rules?
William A. Schabas &
Clémentine Olivier, respectively Professor of Human Rights Law, National
University of Ireland, Galway; Director, Irish Centre for Human Rights and
Doctoral candidate, National University of Ireland, Galway; Irish Centre for
Human Rights; Fellow of the Irish
Research Council for the Humanities and Social Sciences
è International recognition
of Victims’ Rights
Cherif Bassiouni Professor
of Law, President of the International Human Rights Law Institute, De Paul
University, College of Law - Chicago, United States, President of the
International Institute of Higher Studies in Criminal Sciences - Syracuse,
Italy, President of the International Association of Penal Law
è French Nationals detained at Guantanamo Bay:
legal black hole
William Bourdon, French
Attorney, member of the Paris Bar
è Inter arma silent leges
Eileen Servidio-Delabre,
President and Professor, American Graduate School of International Relations
and Diplomacy, ‘Maitre de conférences’ University of Cergy-Pontoise
CHAPTER
II: PLACE OF
TERRORISM AND OF THE VICTIMS IN THE CRIMINAL LEGISLATIONS OF THE EUROPEAN
STATES AND IN THE INTERNATIONAL CRIMINAL JUSTICE
Section 1: Condition of the national criminal legislation of the European
Union Member States
è Terrorism, putting
European criminal procedure to the test
Jean Pradel Professor Emeritus, Faculty of Law,
University of Poitiers, France; President of the Association française de Droit
Pénal
è
Legislation
in France and the contribution of SOS Attentats
Françoise Rudetzki, Founder
and General Delegate, SOS Attentats, SOS Terrorism
è Initiatives undertaken
by the Paris Prosecutor’s Office in the fight against Terrorism
Yves Bot, Public Prosecutor - Procureur de la
République, Tribunal de grande instance de Paris - France
è Italian Anti-Terrorist
Legislation
Giovanni
Pasqua, Director of the International Institute of Higher Studies in Criminal
Sciences - Syracuse, Italy
è Spanish Anti-Terrorist
Legislation
José Luis de la Cuesta,
Professor of Criminal Law, Director of the Basque Institute of Criminology;
Deputy Secretary General of the International Association of Penal Law; Member
of the Board of Directors of the International Society of Criminology
è Victims’ rights in
German criminal trials
Stéphan Maigné, Member of
the Berlin Bar - Germany
è Irish Anti-Terrorist Legislation
William A. Schabas &
Clémentine Olivier, respectively Professor of Human Rights Law, National
University of Ireland, Galway; Director, Irish Centre for Human Rights and
Doctoral candidate, National University of Ireland, Galway; Irish Centre for Human Rights; Fellow of the Irish Research
Council for the Humanities and Social Sciences
è United Kingdom
Anti-Terrorist Legislation
William A. Schabas &
Clémentine Olivier, respectively Professor of Human Rights Law, National
University of Ireland, Galway; Director, Irish Centre for Human Rights and
Doctoral candidate, National University of Ireland, Galway; Irish Centre for
Human Rights; Fellow of the Irish
Research Council for the Humanities and Social Sciences
è The state of
anti-Terrorist legislation in the other Member States of the European Union
William A. Schabas &
Clémentine Olivier, respectively Professor of Human Rights Law, National
University of Ireland, Galway; Director, Irish Centre for Human Rights and
Doctoral candidate, National University of Ireland, Galway; Irish Centre for
Human Rights; Fellow of the Irish
Research Council for the Humanities and Social Sciences
Section 2 : The trial: the victim's
essential reparation
è Testimonies of Victims
è Terrorism and Victims’
Rights
Robert Cario, Professor of
Criminology, Co-Director of the Jean Pinatel Unit for Comparative Criminology,
University of Pau and Pays de l’Adour - France
è Victims’ access to the International
Criminal Justice System
Claude Jorda Judge,
International Criminal Court; Former President of the International Criminal
Tribunal for the former Yugoslavia
CHAPTER
III: INTERNATIONAL CRIMINAL RESPONSIBILITY FOR TERRORISM
Section 1: International criminal law: between evolution
and hesitations
1. Terrorism: which qualification?
è Terrorism and Resistance
Stéphane Hessel, Ambassador
of France
è Is terrorism a crime
against Humanity?
William A. Schabas &
Clémentine Olivier, respectively Professor of Human Rights Law, National
University of Ireland, Galway; Director, Irish Centre for Human Rights and
Doctoral candidate, National University of Ireland, Galway; Irish Centre for
Human Rights; Fellow of the Irish
Research Council for the Humanities and Social Sciences
è Terrorism: search for a
definition or liberticidal drifting?
Ghislaine Doucet, Doctor of
Law, International Law Advisor
2. Criminal Responsibility and Immunity for Rulers: between Justice and
Diplomacy
è The Responsibility of Government Leaders for International Crimes of the State
Alain Pellet, Professor, University of Paris
X-Nanterre - France; Member and former Chairman of the International Law
Commission of the United Nations
è The contribution of ad hoc
International Tribunals to the prosecution of terrorism
Cécile Tournaye, Legal
Officer with the International Criminal Tribunal for the former Yugoslavia
è The issue of immunity of
foreign Heads of State in light of the March 13, 2001 decision of the French
Cour de Cassation and the February 14, 2002 decision of the International Court
of Justice
Eric David, Professor, Université Libre de Bruxelles - Belgium
è Customary international
law: a reappraisal?
Emmanuel Decaux,
Professor, Panthéon-Assas Paris II University - France
è The principle of Universal
Jurisdiction in light of the Belgian experience: the Pendulum Swings Back
Damien Vandermeersch,
Deputy President and Investigation Judge, Tribunal de première instance,
Lecturer at Louvain Catholic University - Belgium
è Immunity and Impunity: separated by a mere consonant?
Criminal Immunity of Heads of State: between custom and change
Thierry Cretin, Public prosecutor seconded to
the European Commission
Section 2: How to answer terrorism?
è A criminological and
victimological approach to terrorism
Reynald Ottenhof, Professor Emeritus; Vice
President of the International Association of Penal Law; Vice President of the
International Institute of Higher Studies in Criminal Sciences - Syracuse,
Italy
è Terrorism and
international criminal responsibility
Ahmedou Ould Abdallah,
Special representative of the U.N. Secretary General for West Africa
è War on terrorism, its
legal foundations and thoughts on the road ahead
Yves Sandoz, Member of the
ICRC, Lecturer at Geneva and Fribourg Universities - Switzerland
è International Humanitarian
Law and the War on Terrorism
Michel Veuthey, Doctor of
Law, Adjunct Professor, Fordham University School of Law; Academic Director,
Center for International Health and Cooperation - United States
CONCLUSION
è The need for a universal
criminal law response to terrorism
Ghislaine Doucet, Doctor of
Law, International Law Advisor
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Quelle est, selon vous, le
principal intérêt de ce livre ?
-
le point sur
les législations pénales internes des Etats membres de l'Union européenne ?
-
la
présentation de ce livre en 4 langues ?
-
autres ……
Vos
réactions sur :
-
terrorisme et résistance
-
légitimité
du principe d'immunité des dirigeants en exercice ?
-
terrorisme : crime contre l'humanité ?
-
terrorisme,
nouvelle forme de guerre ?
Que pensez-vous de :
-
l'harmonisation des législations pénales européennes en matière de terrorisme ?
- l'idée
d'inclure le crime de terrorisme dans la compétence de la cour pénale
internationale ?
-
l'harmonisation du statut des victimes du terrorisme sur le plan international
?
-
l'application pleine du principe de compétence universelle en matière de
terrorisme ?
- la place
des victimes dans le procès pénal ?
Françoise
Rudetzki
Founder and General Delegate of S.O.S. Attentats, SOS Terrorism
In every criminal proceeding
initiated in France by SOS Attentats on their behalf, the victims of terrorism
have been reminded that the obstacles they face are still too numerous - in
spite of apparently good intentions - and that such obstacles not only slow the
wheels of justice, but also allow
the guilty to go free.
Diplomatic and strategic
hesitation on the part of States often leads to failure to enforce the
sentences that are handed down, as in the case of the six Libyan senior civil
servants behind the attack carried out on September 19, 1989 on the UTA DC
10 flight, who were tried and
convicted by the French Cour d'assises.
This kind of balking on the part of policymakers, combined with judicial
timidity, also explains the ruling issued by the French Cour de cassation on March 13, 2001, in the suit filed by
SOS Attentats against Colonel Qadhafi. In
its decision, the Court held that "le crime dénoncé, qu’elle qu’en soit la
gravité ne relève pas des exceptions au principe de l’immunité de juridiction
des chefs d’Etat étrangers en exercice". ("However, in so ruling,
despite the fact that, regardless of how serious it is, under international law
the offense charged is not one of the exceptions to the rule that incumbent
foreign Heads of State are immune from jurisdiction" (translation, Aspen Traduction)
So that justice would be done for the victims, and with the aim of
setting an example, SOS Attentats applied to the European Court of Human Rights,
claiming a denial of justice. At the same time, the organization provided the
lawyers of seven American families whose relatives lost their lives in this
attack with the entire French trial record, enabling them to file suit against
Libya in Washington D.C. federal district Court.
This judgment also inspired
SOS Attentats to solicit the opinions of internally recognized experts.
Compiled in the Livre Noir, their contributions served as the basis for an
international symposium held at the French Assemblée Nationale on
February 5, 2002, organized by SOS Attentats.
Since that
event, the war on terrorism has become a top priority for decision-makers at
the international, national and regional levels. Often showing little regard
for human rights the current battle continues to deprive victims of vital
recognition through the Courts, excluding them from a debate in which they
nonetheless occupy a central role.
Admittedly, the creation of the
International Criminal Court (ICC) must be viewed as a significant step
forward. The ICC Statute unequivocally denies immunity to the perpetrators,
accomplices and instigators of the international crimes within its purview,
regardless of their position or title. But it also excludes terrorist crimes.
Is this a double standard? Should
terrorism continue to be viewed in isolation from other international crimes?
Can its perpetrators be denied basic human rights or, on the contrary, bask in
total immunity, depending only on who they are?
SOS Attentats wanted to
continue the debate that began in 2001 and has worked hard to establish genuine
legal cooperation between all States, so that measures aimed at preventing and
punishing terrorism can be aligned and greater harmony can be achieved between
systems designed to compensate victims of all kinds, whoever and wherever they
may be. In cooperation with the European Commission, which supported SOS
Attentats in the project, the organization solicited 38 original contributions
from 34 experts.
This group effort reflects
SOS Attentats’ ongoing commitment to
justice, which must never be confused with a desire for vengeance. In its work,
SOS Attentats respects all of the rights and principles that apply in the area
of human rights. Its sole objective is to ensure that States live up to their
duty to prevent and punish terrorism.
SOS Attentats was recently
granted a consultative status at the UN’s Economic and Social Council, a
position that will enable the organization to present the views of all victims
of terrorism at an international level. Our aim is to have the crime of
terrorism added to the ICC’s jurisdiction, the status and compensation of
victims harmonized, and to ensure that every single one of them can play his or
her role in criminal proceedings.
Terrorism has gone global.
To respond effectively, we need to harmonize international law and clarify all
the rules of criminal liability, without exception.
M.
Cherif Bassiouni
Professor of Law, President of the International Human Rights Law
Institute (Chicago, USA)
President of the International Association of Penal Law (Paris, France)
President of the International Institute of Higher Studies in Criminal
Sciences (Syracuse, Italy)
Terrorism is a strategy of
violence that targets innocent people in the pursuit of political aims. The
strategy may be carried out by individuals, groups of individuals, or
representatives of the State. It may target public or private individuals and
property, with the immediate aim of creating a climate of terror in civil
society and the ultimate aim of demonstrating that the State is incapable of
protecting civilians and maintaining law and order.
Whether
the strategy is adopted by the State or by individuals, acting of their own
accord or on behalf of a group of individuals, civilian populations – or
certain elements thereof – generally suffer the brunt of the impact. Those who
resort to this type of violence, often indiscriminately, hardly give a moment’s
thought to the consequences of their act. The reason they have decided to use
violence is justification enough in their view. The act itself, like its
consequences, is confounded with values and aims that its perpetrators consider
more important than the harm and loss it causes. In a way, this is akin to the
perverse reasoning whereby the end justifies the means – a worldview in which
human consequences simply do not enter into the balance. It is precisely for
this reason that our focus is on protecting the innocent.
In all its major branches and
throughout its history, law has been a testament to the fact that all
civilizations founded on the notion of a state of laws have endeavored to base
responsibility on the act and its consequences rather than on its political
justification. It is from this perspective, therefore, that we must measure the
nature of the crime, even if the perpetrator justifies the act by appealing to
higher values, for the latter could not survive the state of anarchy that would
result from this crime rationale. Consequently, our civilization must refuse
the idea of violence against the innocent, in all shapes and forms and
regardless of who commits such acts, unless we want to fall into a state of
barbarism, where brute force prevails over human values.
More than anything else,
the battle against terrorism is an affirmation of human values, which are
protected by rules that govern all conflicts, whether they be international,
internal, or merely represent a struggle for power.
The challenge we face today
is multi-faceted. It encompasses the duties and obligations that stem from the
limitations that humanitarian law places on international, regional and
internal armed conflict of all kinds. This challenge, as well as the
international duties related to safeguarding human rights, concerns the means
employed by those intent on toppling a regime from the inside as well as those
who seek to maintain power within society. It is the law, as a national and
international institution of law and order, which must rise to this challenge
by establishing effective means of prevention and coercion, while respecting
the rule of law.
This
work raises a number of these issues by examining the many facets of this
complex issue, including the legal definition of the crimes grouped under the
term terrorism, the resources used by those who resort to terrorism to meet
political ends, and the methods used by organizations charged with protecting
civilians against those who target them through acts of terror. In addition,
these essays reflect the difficult tradeoff between prevention and punishment,
and between abiding by the rule of law and obtaining results by stepping
outside of it.
Finally, the question of
victims is ever present. How should they be treated, what are their rights, how
can we alleviate - and to some extent compensate them for - their suffering?
In this age of
globalization, the broader backdrop against which these questions must be
viewed is more likely international than domestic. Consequently, new elements
of international law are brought to the fore: barring immunity claims for Heads
of State and other forms of immunity; the recognition and enforcement of the
notion of universal jurisdiction; above all, the set of obligations derived
from the maxim aut dedere aut judicare.
Like other forms of
international crime, terrorism can no longer benefit from the impunity provided
and maintained by certain States in the name of realpolitik. Following in the footsteps of civil society, the
international community is demanding an end to the impunity enjoyed by those
who have committed the most heinous crimes of the twentieth century.
The verdict of the international community was handed down when World
War Two ended: “plus jamais ça” (“Never again”). Unfortunately, this promise
has never been kept. It is our duty to do so, not only to show our support for
the victims of international crimes, but also out of respect for our own
humanity and for the sake of those who could, in the future, fall victim to
terrorism because we failed to do enough to reduce the threat. If we forget the
mistakes of the past, we are - alas - condemned to repeat them.
This
publication is intended to serve as an individual and a universal reminder. I
would like to conclude by expressing my gratitude to SOS Attentats, for the
significant efforts it continues to make in defense of victims.
Denise Sorasio
Director
Justice and Home Affairs – External Relations and Enlargement
Directorate General for Justice and Internal Affairs
European Commission
Speech
given and updated by Ms Denise Sorasio at the international conference
organised in Paris on February 5, 2002, by SOS Attentats
This speech reflects the author's views and does
not necessarily reflect those of the organization she represents
The European Union has made
considerable progress of late in the fight against terrorism. Today I will
briefly review the key achievements. In the final analysis, I believe that, as
tragic as they were, the events of 11 September helped to overcome inertia and
enable decisions. The European Union took swift action, and did not content
itself with stopping there. It has made a sustained effort since 11 September,
and this is a cause for celebration.
The ability to take action
in the areas of justice and internal affairs is relatively new for the European
Union. Admittedly, levers for action are not yet perfect. Let’s hope that the
future Convention will bring further improvement. In fact, it was not until the
Amsterdam Treaty was signed on 1 May 1999 that we had any levers for action at
all.
Since then, the seeds
contained in the Maastricht Treaty in the area of justice and home affairs have
been brought more closely into line with what exists within the Community
system, leading to greater efficiency.
In concrete terms, it means
we have the tools needed not only to pass legislation, but also to implement
cooperation in the areas of law enforcement and justice. Achievements to date
are of this type. Their swift implementation, in spite of a decision-making
process that is generally rather cumbersome, was obviously made possible
because the groundwork was laid well before 11 September.
The Amsterdam Treaty places
the fight against terrorism alongside other forms of organised crime, ranging
from trafficking in human beings to trafficking in drugs and other products.
Hence, both the problem and the basis for action can be found in the Treaty.
They can also be found in European Council declarations made by heads of state
and government since the end of 1999, and in the action plans launched by the
Commission in response. The programme of action, then, has existed for some time.
Moreover, in a resolution passed by the European Parliament in early September
2001, i.e. before the terrorist attacks of 11 September, the need to fight
terrorism effectively is given due emphasis. Because it figured among the
primary objectives of the work to be accomplished in the area of justice and
security, the Commission was able to put forward proposals for Framework
Decisions on terrorism and the European arrest warrant on 19 September2001. The
Council approved these draft proposals in principle in December 2001 and
formally adopted them on 13 June 2002, setting a record in terms of speed of
decision-making.
These legislative
proposals, since adopted as Framework Decisions, also illustrate our levers for
action. One involves harmonising legislation, while the other is an example of
mutual recognition.
The Framework Decision on
terrorism, an example of harmonisation, contains a common definition of
terrorism, and requires Member States to punish certain acts of terrorism. It
sets minimum and maximum penalties and specifies rules concerning jurisdiction.
While this may seem somewhat technical, enacting European level legislation is
extremely important. It ensures that acts of terrorism are punished in the same
way throughout the Union, addressing President Forni’s concern, expressed
earlier, about "safe havens” for criminals.
By adopting common
legislation, we did what was needed to prevent safe havens from developing.
After much debate, the Union adopted a common definition of terrorism that
encompasses a whole series of major and minor offences, such as hostage-taking,
murder and biological and chemical warfare. But the definition goes further,
stating that the intention to commit a terrorist act is an aggravating factor
that warrants a heavier penalty. This is the first lever.
The second lever is quite
different, although it too is a Framework Decision. I am referring to the
European arrest warrant. It is a mechanism for mutual recognition of judicial
decisions the underlying basis of which is that, while procedures and systems
differ from one Member State to the next, they all offer sufficient guarantees
and are of sufficient quality to merit mutual trust among the various members
of the judiciary. Trust is the key word behind the notion of mutual recognition:
members of the judiciary in one Member State can trust their counterparts in
other Member States. From the traditional system of extradition, which
presupposes the involvement of politicians in certain cases, we move to the
recognition – usually automatic – of
decisions handed down by a magistrate or court in another Member State, which
are directly enforceable.
Incidentally, the European
arrest warrant does not apply to terrorist acts alone. It will also be used in
connection with a long list of offences.
The broad outlines of the
system are as follows: the European arrest warrant, whose scope is identical to
the European Extradition Convention of 1957, will replace extradition
procedures in force between Member States. Unlike extradition, the new system
is exclusively judicial, which means that there is no political involvement in
the decision to extradite. The principle of dual criminality is abolished for
32 offences (including acts of terrorism, as defined in the Framework
Decision), where they are punishable in the executing state by a prison
sentence of three years or more. The decision to extradite must be made within
90 days of arrest, and admissible grounds for refusal are explicitly outlined.
Member States that have refused until now to extradite their own nationals will
no longer be able to do so.
Cooperation in the area of
criminal justice is another lever. Once again, while the scope exceeds the
fight against terrorism, terrorism is one of the priority crimes to be taken
into consideration in light of events we are all well aware of. Other important
initiatives in this direction are worth mentioning: on 19 April 2002, the
Commission submitted a proposal for a Framework Decision on attacks against
information systems. It complements the European arrest warrant and the
Framework Decision on terrorism by introducing efficient measures to counter
cyber-terrorism, responding to growing fears of terrorist attacks on Member
States’ information systems which form part of their critical infrastructure
(those that manage hospitals, air traffic, etc.). The draft proposal was agreed
to on 28 February 2003, as was the general thrust of the proposal for a
Framework Decision on freezing assets and evidence. This measure, which will
help judicial and police authorities conduct cross-border investigations, will
be adopted once parliamentary reservations have been lifted.
Eurojust is a new EU body,
established by a Council Decision on 28 February 2002 and which came into force
on 6 March 2002. Eurojust is designed to help co-ordinate criminal
investigations and brings together representatives of the judicial systems of
EU Member States, who work together to ensure mutual cooperation and efficient
information gathering in the event of cross-border crime.
Europol, an older
organisation of the same type, was set up to encourage police cooperation.
Europol gathers, analyses and distributes information supplied by local police
forces in EU Member States, and ensures that it flows efficiently (and we know
how important this is in the fight against all forms of crime). In light of the
events we have already referred to, Europol has been given a key role in the
fight against terrorism, and additional financial and human resources to
perform it. Indeed, in this extra-legislative realm -- which concerns the
efficient pooling of information in the possession of law enforcement and
intelligence agencies in the various Member States – resources have been
stepped up. In addition, and in the interest of strengthening cooperation
between operating units involved in the fight against terrorism, Member States
recently agreed to give "relevant" information to Europol and
Eurojust.
At the same time, we must
not forget the fundamental guarantees that are the foundation of democracy, and
that underpin all European-level initiatives. If, in the pursuit and punishment
of would-be terrorists, we fail to respect the rights of the accused, which are
set out in Article 6 of European Convention on Human Rights, then we will only
debase our own society and, in so doing, aid and abet terrorist aims. This is
why the European Commission has undertaken a substantial project on procedural
safeguards in criminal cases. The most recent milestone was the publication of
a Green Paper on 19 February 2003. A proposal for a Framework Decision should
be ready by the end of the year.
Condition of the national
criminal legislation of the European Union Member States
AND
THE ROLE OF S.O.S. TERRORISM
Françoise
Rudetzki
Founder and General Delegate, S.O.S. Terrorism
All
French legislation and regulations relating to the definition and punishment of
terrorism contained in the Code Pénal and the Code de Procédure Pénale are
available on the S.O.S. Terrorism website: www.sos-attentats.org (under
"Juridique").
Terrorism
is the most serious and dangerous of crimes: it threatens the lives of all
civilians on every continent and flaunts international law. It seeks to terrify
by instilling a sense of collective fear, destabilizing States that respect the
rule of law and undermining the very principles on which our democracies are
built.
While no cause could ever
justify killing civilians, it is equally true that terrorism does not justify
the renunciation of democratic values. Our support for democratic principles
must not waver in the face of terrorist blackmail, nor must our political
institutions or our systems of justice and law enforcement.
Deeply anchored in our
collective memory, acts of terrorism are primarily intended to strike our
imagination. This is why they must be violent and spectacular, and why they
seek symbolic targets.
The
resulting sense of injustice is the same whether one is a hostage, a bombing
victim, a journalist, a law enforcement officer, a politician, a tourist or an
ordinary citizen. The aim of terrorism is to strike at a perceived enemy
without actually confronting him.
Despite
the substantial media coverage given to acts of terrorism, victims long
remained in the shadows, isolated and excluded. Once their intensive medical
care had ended, they were treated with indifference and deprived of support –
psychological, social, financial or legal. After being flooded with momentary
compassion at the time of the crime, victims were just as quickly forgotten,
falling into the void of solitude. The primary concern of policymakers was to
erase all visible traces of physical damage.
With the establishment of S.O.S. Attentats in France in late 1985
(as an NGO), it became possible to fight for the right of victims to be heard.
Today, with nearly 2,000 surviving victims and family members of those who have
lost their lives to terrorism, our goal is to ensure that the State has the
legal resources it needs, without creating a system that fails to safeguard the
underlying principles of our criminal justice system.
THE FIGHT FOR COMPENSATION: THE ORIGINALITY OF
THE FRENCH SYSTEM
In 1985, working through S.O.S. Attentats, victims of terrorism
forced public policymakers to pass legislation that guarantees compensation and
that is totally separate from the underlying criminal proceeding.
The policymakers involved,
to whom the very word “terrorism” seemed unacceptable – and this in a State of
laws – balked at the idea of incorporating this concept into French
legislation.
Terrorism
gained legal recognition only because of a public awareness campaign driven by
a petition circulated by S.O.S. Attentats with the help of the media at the
time France experienced yet another wave of terrorist bombings in February and
March of 1986. In April 1986, an anti-terrorism bill was submitted to
Parliament that contained stronger measures aimed at prevention and punishment.
Although initially omitted, the notion of compensation was later incorporated
in the Act in the form of an amendment. The idea was to separate compensatory
funding from the budget process in order to ensure swift and full payment.
Article 9 of Law 86.1020 of
September 9, 1986 on the fight against terrorism and other offenses against
national security, established a Fonds de garantie (hereinafter the
"Fonds") to provide
reparation for losses and harm caused by acts of physical violence directed
against victims of the terrorist acts mentioned in Article L 126-1 of the
French Code pénal.
The scope of this
organization was retroactively expanded to include the victims of terrorist
acts committed since January 1, 1985 and extended to other crime victims by the
Law of July 6, 1990.
The Fonds is governed by the French Code des Assurances and the French Code
de Procédure Pénale.
A non-profit organization,
it has been granted special legal status to determine the rules of
compensation. The Fonds is governed
by a board of directors, whose members include the chairman; four
representatives from the French ministries of Finance, Justice, Social Affairs
and the Interior; three individuals with a recognized interest in victims; and
an insurance industry professional.
Since the Fonds was
founded, S.O.S.
Attentats has represented the victims on the board of directors. The Fonds is financed through a special tax
levied on certain kinds of property-casualty insurance policies (homeowners’,
commercial and motor). For 2003, this tax is three euros per policy.
The Fonds offers full
compensation for harms suffered by victims, including those that are psychological
and personal. Since this settlement is completely separate from any related
lawsuits, victims maintain the right to seek redress and may file a complaint
against the alleged perpetrators of the act of terrorism in question.
The Fonds offers compensation to all victims or their rightful
beneficiaries, regardless of nationality or resident status in France, provided
that the act of terrorism in question was committed on French soil. For acts of
terrorism committed abroad, only survivors or their rightful beneficiaries who
are French citizens or who have dual nationality may seek compensation from the
Fonds. Individuals held hostage are
compensated upon their release, and their families receive an allowance
throughout the period of captivity.
When an act of terrorism is
committed in France, the Fonds is
informed of the identity of all victims by the Procureur de la République (Public Prosecutor). For acts of terrorism committed abroad, the Ministry of Foreign
Affairs provides this information.
The Fonds must pay victims an allowance within a month of having
received their claim. The allowance is renewed on the basis of medical status.
Victims have ten years to file a claim.
The Fonds is subrogate with respect to the victims it compensates,
which means that the latter have only one party to deal with and hence receive
settlement more swiftly.
Between January 1, 1987 and
June 1, 2003, the Fonds processed
2,875 cases relating to more than 434 terrorist events.
One
of the organization’s aims was to push for legal recognition of the specific
nature of terrorism as well as the political origin of its triggering factors.
To buttress its argument, S.O.S. Attentats solicited the opinion of health and
social workers on the direct and indirect consequences of terrorist attacks.
An epidemiological study
was carried out in France by the Institut
National de la Recherche Médicale (INSERM) in 1986 and 1987 on a sample of
313 victims of terrorist attacks committed between January 1, 1982 and
September 17, 1986.
The
findings indicate that victims of terrorism face special health problems and
underscore the urgent need to improve the medical and social services available
as well as compensation policies. In addition, the victims of terrorism
experience fallout on the personal, familial and professional levels that is
unrelated to the severity of the bodily injuries they have sustained.
Terrorist attacks present
several unique features, whose impact on the health of its victims is poorly
understood. Unlike other traumatic events, terrorist attacks are highly unusual
and utterly random. They cannot be traced to any particular decision or
behavior on the part of their victims. And although terrorists lash out
blindly, their acts strike victims as being deliberate.
Around forty percent of the
victims were seriously injured, while just as many sustained no injuries. On
the psychological level, the most salient feature is the frequency with which
civilian victims of terrorism suffer from PTSD, or post-traumatic stress
disorder (18.1%). A causal relationship has been established between the
severity of bodily injuries and the frequency of PTSD. For seriously injured
victims, the risk of developing PTSD is multiplied by a factor of three.
PTSD can be defined as the
long-term effects of a traumatic event that is persistently re-experienced
through disturbing dreams, flashbacks, and exaggerated startle response.
Sufferers tend to be withdrawn and phobic, displaying a range of symptoms that
may be accompanied by psychosomatic disturbances (irritability, sleep
disorders, feelings of guilt, difficulty concentrating, etc.). These symptoms
generally return after periods of absence that may last several months. In the
case of spectacular events that attract wide media coverage and that occur in crowded
public places, the psychologically traumatizing aspect of the experience comes
as no real surprise. The recurrence of the initial trauma upon exposure to
internal or external cues is one of the key diagnostic criteria for PTSD. The
frequency (around 10%) of the disorder is noteworthy, even in individuals who
survive the actual traumatic event without sustaining physical injuries. The
frequency in seriously wounded victims (more than 30%) is even higher than that
found in Vietnam combat veterans (for whom the highest known frequency is
23.9%). These findings suggest that, quite apart from its peculiar conceptual
features, the impact of terrorism on its surviving victims is very specific and
concrete. The fact that it occurs with exceptionally high frequency in those
who have been exposed to acts of terrorism is perhaps its most defining
characteristic.
Submitted
to the board of directors of the Fonds de Garantie in the fall of 1987, these
findings were used to amend the rules governing compensation. They were also
instrumental in pushing through legislation and regulations designed to better
address the needs of victims.
Due to the proportionate
relationship between the severity of the initial injuries and the subsequent
disorder, the taux d’incapacité permanente
partielle (degree of permanent partial disability or I.P.P.) is used to determine compensation levels.
The specific harm suffered
by victims of terrorist acts, which
entitles the beneficiary to additional compensation, is set at 40 percent of
the I.P.P. rate or a minimum of 2,300
euros (even if the I.P.P. equals
zero).
In addition to simplicity,
this system offers victims the option of foregoing psychiatric examination,
which many find traumatizing.
Moreover,
this marks the first time an epidemiological factor has been used to make
decisions related to compensation.
THE FIGHT FOR CIVILIAN WAR VICTIM STATUS
In a letter dated May 11,
1987, S.O.S. Attentats asked François
Mitterrand, then president of France, to grant the status of civil casualty of
war to the victims of terrorism, so that the latter would be eligible for the
benefits to which the former are entitled.
Once
again, legislation was propelled by an act of terrorism, the most deadly on
record in France. On September 19, 1989, a bomb exploded during a UTA flight
from Brazzaville to Paris flight, killing 170 passengers and crewmembers and
leaving numerous orphans in its wake.
In an interview granted in early December of 1989, François Mitterand
stated: "et pourquoi hésiterait-on
davantage à donner leurs pleins droits, le meilleur de leurs droits aux
victimes du terrorisme par comparaison aux victimes de guerre ?"
Article 26 of the Law of
January 23, 1990 (JO 25 janvier
1990) extends the provisions of the Code
des Pensions Militaires d'Invalidité et des Victimes de la Guerre to the
victims of terrorist acts committed since January 1, 1982, giving them the
status of civilian casualties of war. As such, they have access to free medical
care and military hospitals, where they are cared for by military physicians
with extensive experience in treating the physical and psychological scars of
terrorism. Surviving children are considered to be ”Pupilles de la Nation” (wards of the State).
More
importantly, however, the law implicitly acknowledges that terrorism is a new
form of warfare that strikes civilians during peacetime.
THE FIGHT FOR ACCESS TO JUSTICE, AND AGAINST
TERRORISM AND IMPUNITY
Financial
settlements must not be traded for a vow of silence, nor should they deprive
victims of their right to public recognition or their day in court. For
victims, no amount of compensation could ever replace the reparation provided
by an adversarial proceeding. Neither hatred nor the desire for vengeance is at
issue: victims simply want those who have committed crimes to be tried,
sentenced and punished in accordance with the requirements of justice and due
process.
The Law of July 6, 1990 (article 2-9 of Code de Procédure Pénale) gives S.O.S.
Attentats the right to file a claim for civil damages in a criminal proceeding
(se constituer partie civile) in all terrorist cases (murder, attempted murder,
aiding and abetting, financing), as well as in connection with offenses
committed by individuals with known links to terrorism (terrorist networks),
(Cf. art. 706-16 al. 1 of the Code de Procédure Pénale, amended by the
Law of 22 July 1996). This right may be exercised whenever a criminal
proceeding has been initiated by the public prosecutor or the wronged party.
This legislation provides
that:
"Any organization that
has been duly registered for at least five years on the date of the events in
question, whose articles provide that it will provide assistance to victims of
crime, may exercise the rights of a party claiming civil damages in a criminal
proceeding provided that the offense in question falls within the scope of
article 706-16, once the criminal proceeding has been initiated by the public
prosecutor or the injured party".
According to transitional
provisions, organizations that had met filing deadlines before the Law of
September 9, 1986 were exempt from the five-year requirement. As a result, S.O.S. Attentats (which had filed on
January 24, 1986 ; Cf. J.O., 26 February 1986. In 2003, S.O.S. Attentats changed its name to "S.O.S. Attentats, S.O.S. Terrorisme" (J.O. 10 May 2003),
whose stated purpose is to defend the interests of the victims of terrorism, is
in fact the only organization
qualified to file a claim for civil damages in a criminal proceeding.
In 2003, S.O.S. Attentats has filed damage claims in more than one hundred criminal proceedings
(felonies and misdemeanors) brought in France against perpetrators of terrorist
acts.
The advantages of joining
forces with the victims of terrorism are many. Not only does a single attorney
handle the matter; victim access to justice is also enhanced. Indeed, S.O.S.
Attentats is able to offer the victims of terrorism the only sure way of
becoming a genuine player in a criminal proceeding. Moreover, because victims
are automatically compensated by the Fonds
de garantie, the rationale behind these
civil suits is not to secure money damages. Rather, the aim is to pursue the
fight against terrorism and satisfy the legitimate need for recognition.
Unfortunately, justice
continues to be denied in far too many cases, for a number of different
reasons. This is true in the case pending in France against Colonel Gaddafi in a March 13, 2001 ruling, the Cour de Cassation rejected the claim
filed by S.O.S. Attentats, on the
grounds that heads of state in office are entitled to full immunity regardless
of the seriousness of their crimes. S.O.S. Attentats viewed this decision as a miscarriage of
justice, since it deprives the families of victims of their right to find out
the truth. Application has therefore been made to the European Court of Human
Rights.
S.O.S. Attentats is firmly convinced that when prevention has
failed, the courts are the only effective weapon in the fight against terrorism
and the only dignified response available to democratic States. In any case, a
hearing in a court of law is the last stage of reparation that society has to
offer victims. It can help the survivors of terrorism move beyond the status of
victim, and commemorate those who have died. In this way, actions taken by
victims in search of inner peace advance the cause of international peace.
Initiatives Undertaken by the Paris
Prosecutor’s Office
in the fight against Terrorism
Yves Bot
Public Prosecutor
(Procureur de la République),
Paris District
Court (Tribunal de Grande Instance de Paris)
In my
installation speech on November 5, 2002, I stated that the fight against
terrorism was the first of two top priorities.
At the time, I reminded
those in attendance that the judiciary plays a special role in fighting this
battle. It must:
- protect both the citizens and the
homeland of the French Republic
- preserve the rule of law in the
face of inhumanely violent acts of brute force, by putting in place a process
that guarantees respect for the rights that this force denies and seeks to
destroy. In doing so, the judiciary demonstrates that the rule of law can
prevail over force.
France has
gradually enhanced its arsenal of counter-terrorism legislation, of which the
linchpin is the Act of September 9, 1986. The latter has been frequently
amended and strengthened to respond to the multiple guises of national and
international terrorism.
Barring a few isolated
problems, the framework instituted by the 1986 Act has proven effective thus
far.
The legislative decision to
centralize the counter-terrorism system in Paris jurisdictions has undeniably
rendered the framework more efficient: it is easier to group court cases, the
decision to prosecute is issued from a single source, and the judges with
original and appellate jurisdiction are specialists in the fight against
terrorism.
This
observation should not, however, inhibit the search for even more effective
ways to combat acts of terrorism. Especially considering that, far from having
disappeared or receded, the threat of terrorism has, in the opinion of most observers,
grown in recent years and months.
Traditionally,
the principle avenue leading to terrorist networks has been thorough,
painstaking – and often successful – investigations conducted on the basis of
the evidence gathered on acts of terrorism that have either been committed or
planned, or on the organizations preparing to commit such acts. Attempting to
get to terrorist activity via its sources of funding is a much less traveled
road.
In the eyes of
many, this approach faces a number of obstacles:
- First of all, the terrorist
threat in France wears multiple guises, operating via diverse organizations
with diversified financing structures.
- Second,
as a number of specialists have pointed out, some of the most deadly acts of
terrorism committed in France in recent years were carried out with few
resources, leading many to the conclusion that focusing on how such operations
are financed simply doesn’t pay off.
- Finally, others note that efforts
made in this direction to date have failed.
In and of itself,
exploiting evidence on terrorist funding sources is not new.
The practice,
which has gained broader currency in light of the September 11, 2001 attacks,
is primarily driven by information from Tracfin, the financial intelligence
unit that operates under the auspices of the French Ministry of the Economy,
Finance and Industry. This information is collected within the scope of Article
40 of the French Code of Criminal Procedure which requires that all government
departments and civil servants notify the Public Prosecutor of any major or
minor offense that comes to their attention in the performance of their duties.
The
Prosecutor’s Office is regularly notified of red flags reported within Tracfin
and identified as involving financial transactions that appear to be related to
terrorist organizations.
The red flags
are automatically investigated by one of France’s specialized law enforcement
units.
As I speak, investigations
of these red flags are still pending. They face two major obstacles:
- Ascertaining the financial
mechanisms used by terrorists is difficult due to a lack of available
resources.
- Linking these mechanisms to any
particular terrorist activity is difficult.
The Paris
Prosecutor’s Office recommends that this avenue continue to be explored, first
by establishing closer ties to Tracfin, the Office
central pour la Répression de la grande
Délinquance financière, and other agencies whose assistance could be of
great value, such as tax and customs administrations.
I have also
decided to strengthen the relationship between the Prosecutor’s Office and
international judicial organizations – particularly within the European
Judicial Area – through Eurojust and liaison judges (magistrats
de liaison), so that more information can be
shared with foreign judicial authorities working on these kinds of cases. By
pooling the evidence and information gathered by European and international
counter-terrorism organizations, we will be able to shed light on the financial
web that links terrorist organizations and exploit these very connections to
reach and destroy the underlying structures.
But the war on
terrorism via its funding can also be waged on other levels. And although some
of these actions may be less spectacular, they could well produce appreciable
results.
First, we could
systematically conduct more thorough investigation into the actual existence
and nature of the revenue streams that suspects identified in terrorist
investigatory proceedings declare or admit to. For the time being, however,
this aspect is given far less attention than other matters, such as the search
for those who aid and abet such suspects and the structure and organization of
the terrorist cells to which they belong.
From now on,
information provided by suspects on their financial resources or business
activities will be verified and thoroughly investigated.
These
investigations, which will require cooperation with other counter-terrorism
organizations, will help us understand the way certain terrorist networks
operate, establish links between them, and perhaps even disrupt or destabilize
their usual ways of operating.
This idea and
goal have resulted in a sharper focus on the financing of terrorism via the
so-called underground economy – i.e. embezzlement and racketeering, proceeds
from the sale of stolen merchandise, brand counterfeiting, trafficking in
banned substances or means of payment, and even arms dealing.
These kinds of
investigatory and judicial proceedings truly place obstacles in the paths of
those who are part of the local networks whose participants frequently include
known members of terrorist movements. Many of them have already been convicted
in French courts under counter-terrorism legislation in force – in some cases
for serious offences.
Taken together,
the preceding remarks and considerations led to my decision to reorganize the
Paris Prosecutor’s Office. Facilitating coordination and information sharing
should make the organization more efficient.
The decision to
establish a special anti-terrorism and organized crime unit within the
Prosecutor’s Office is part and parcel of the same approach. The new unit
brings together, within a single division and under a single authority, special
counter-terrorism judges from the Prosecutor’s Office and judges who hear cases
that involve individuals who have committed offenses which, in one way or
another, sustain, support, facilitate or mask terrorist activity.
ITALIAN
ANTI-TERRORIST LEGISLATION
Under the editorship of
Giovanni Pasqua
Director ISISC
INTRODUCTION
Despite the long history of
terrorism in Italy, no substantive legal definition of terrorism or the crime
of terrorism existed under Italian law until late 2000. Itlay’s experience with
terrorist attacks, better known as the "lead years" started on April
25, 1969 with the explosion of a bomb at the Milan Fair. A few months later,
another explosion occurred at the Banca dell'Agricoltura on the Piazza Fontana
in Milan,. Subsequently, two terrorist attacks occurred in 1974, one at
a trade union meeting on the Piazza della Loggia in Brescia, and the other in
the Italicus train. The massacre at Bologna railway station in August 1980 also
must be noted.
Italian law on terrorist
offences derives from a combination of legal sources, including the Penal Code,
which dates back to 1930, the fascist era. The Penal Code criminalized
"offences against the internal person of the State", the so-called
"emergency legislation", and introduced the following acts of
terrorism in the 1970s and 1980s. A broad study of the term terrorism reveals
that the word was first used under Italian law in 1978, when
Article 289 bis was introduced into the Penal Code. More recently,
the word has been used in international law to combat international terrorism
and its associated financial offences, following the terrorist attacks
of September 11, 2001. Immediately after that mass tragedy, in fact, the United
Nations Security Council adopted two resolutions, Resolution 1368 was passed on
September 12, 2001and Resolution 1373 on was passed September 28, 2001. At the
same time, Italy is a signatory to the principal multilateral conventions
against terrorism and has also entered into several bilateral anti-terrorism
agreements.
Italian
legislation prior to the terrorist attacks of September 11, 2001
Terrorism in Italy, defined
literally as inside the territory of Italy, was a national phenomenon that
developed at the end of the 1960s. Therefore, the Italian Penal Code did not
contain any provisions dealing with the terrorist phenomenon. The only legal
instruments available to the courts for punishing this type of offence were
those set out in the Penal Code of 1930 (“Rocco Code”). The "special
section" of this code placed what are now known as political offences,
such as "offences against the
internal person of the State" at the top of the list of evils that the
law was required to protect. The provisions contained in the code were a
reflection of the historic era of facism in which they were introduced, and
symbolized the political model of the totalitarian State.
The code contained a number
of offences at that time that could be used to qualify terrorism as a criminal
offence. For example, these include: subversive association (Art. 270),
subversive or anti-patriotic propaganda or apology of a crime (Art. 272), armed
insurrection against the power of the State (Art. 284), waging civil war (Art.
286), political conspiracy by agreement (Art. 304), political conspiracy
through association (art. 305), and the formation or membership of armed gangs
(Art. 306).
This authoritarian system
made the application of the legal provisions difficult, as is usually the
case with political offences. Article 270, which defines illegal subversive associations as associations "aimed at subverting the social
and economic order through violence," is a typical example. First, the
legislature tried to avoid any possible accusation that this article was
incompatible with notions of freedom of association and thought, articulated
respectively in Articles 18 and 21 of the Italian Constitution, and therefore
unconstitutional,. It did this by stressing that these liberties might
legitimize the subversive aim but not the violence. Secondly, it argued that,
to a certain degree, the Italian Constitution allowed citizens to express the
idea of "subversion with violence" provided they did not translate their
thoughts into actions.
The courts’ various
interpretations of Article 306 has played a central role in the development of
the law. This article refers to the Constitution and membership of armed gangs formed to commit offences
against the internal or international person of the State. Although this
article does not actually define the term armed gang, it has been applied and
extended to a wide variety of organizations which, from time to time, have been
defined as armed gangs.
The consequences and
magnitude of terrorist activity at the beginning of the 1970s made it essential
to introduce adequate preventative legislation. This legislation was
appropriately defined as "emergency
legislation" in the light of the exceptional circumstances at that
time that were affecting Italy, threatening the security of its citizens and
institutions. By introducing criminal offences relating to those circumstances,
it has been possible to justify certain provisions which, could could have been
considered incompatible with the fundamental principles of the Italian
Constitution. This legislation was defined as emergency legislation partly because it was a symbolic and
emotional response to specific episodes of terrorism. For example, on the day
following the kidnapping of Aldo Moro, Legislative Decree No. 59 of March 21,
1978 (converted, following amendment, into Act No. 191 of May 18, 1978)
introduced Article 289 bis into the Penal Code. Paragraph 1 of this
article provides that:
"Any
person who, for terrorist ends or with intent to undermine the democratic
order, kidnaps another will be punishable by a term of 25 to 30 years
imprisonment."
The occurance of other,
particularly serious bloody acts was the catalyst for a second criminal law
enactment in the form of Legislative Decree No. 625 of December 15, 1979
(known as the Cossiga Decree converted, following amendment, into Act No. 15 of
February 6, 1980). At this time, the Penal Code was amended to include the crimes
of association for terrorist ends or with intent to undermine the democratic
order contained in Art. 270 bis and committing atrocities for terrorist ends or
with intent to undermine the democratic order contained in Art. 280.
Article 270 bis provided the following:
"Any person promoting,
forming, organizing or running associations formed to commit acts of violence
with intent to cause serious disruption to the democratic order will be
punishable by a term of 7 to 15 years imprisonment.
Any person who is a member
of such associations will be punishable by a term of 4 to 8 years
imprisonment."
Article 280 (1) provides
that:
"Any
person who, for terrorist ends or with intent to undermine the democratic
order, kills or causes bodily harm to another will be punishable, in the first
case, by a term of at least 20 years imprisonment and, in the second case, at
least 7 years imprisonment."
The symbolic significance
referred to above is clear from a general overview of the new provisions and is
also revealed by the fact that most of the aspects described could well have
been added to the definitions of existing offences. In actual fact, the
legislature created changes in the severity of punishments, and clarity of the
provisions, affording particular importance, for the first time in Italian
legislation, to the notion of pursuing terrorist
ends. As far as the new offences are concerned, this aim would seemed, more
explicitly, to be one based on defining elements of the crime, such as the
specific intent or the mens rea requirement.
However, it has not been given a substantive definition and it is therefore a
matter for the person interpreting this political and sociological concept to
resolve the problem of its vagueness. The emphasis on this matter has been
placed on the violence used as a means of spreading panic, such as in the case
of terrorism, and on changing the constitutional order like in the case of
subversion. Some have also argued that in order to puruse the ultimate goals of
this type of legislation, it is impossible to disregard the pursuit of
political objectives, whereas in the case of subversion, the violence may be
disregarded. Another problem with interpretation has been raised concerning the
relationship that exists between these two aims. The opinion of legal
commentators is divided between those who argue that these aims are always
associated and those that consider them to be independent concepts that do not
necessarily go hand in hand.
Regardless of what the
intended interpretation may have been, the current circumstances preclude any
possibility of including groups formed to commit international acts of
terrorism in the definition. In their decisions, the courts have take
the view that only the internal constitutional order is eligible for protection.
The objective of defining
acts of terrorism or acts undermining the democratic order may be considered,
according to the terms of Act No. 15 of February 6, 1980, an aggravating circumstance, by virtue of
which the sentence may be increased by half. Article 1, which provides for such
an increase, appears to be a "fencing" provision because it protects
the constitutional order even in the absence of offences against the person of
the State. Pursuant to this provision, an increase in sentencing is valid regardless
of the offence, with the exception of those offences where the circumstances in
which it was committed are an essential ingredient of the offence. This
can only occur, however, if two interpretation problems are solved. First, the
offences where the end purpose may be considered an essential ingredient must
be considered. Also, another issue to consider is other limits due to
aggravating circumstances in addition to the limits set out in the wording of
the legislation. Regarding this latter issue, it has been argued that the end
purpose should not be judged unless there is a direct attack on what the law is
intended to protect, because the result would be to punish the perpetrator of
the offence on the basis of his intentions.
1 "Premiale" legislation.
Criticism directed at these repressive measures due to the excessive reduction
in legal safeguards have taken on additional force in the light of the
proven ineffectiveness of the provisions. Compared to the consequences in terms
of loss of freedom, the gain in terms of security was inadequate. Legislation
known as "premiale" legislation, where the legislature enacted
emergency laws and tried to place emphasis on general prevention using
incentives rather than threatening by means of sentencing, proved, however, to
be an effective instrument. Providing for favorable treatment in exchange for
various forms of repentance has contributed to the development of the "pentitismo." The pentitismo has been one of the main
causes of the gradual dismembering of the "armed party", and has
helped to secure key information for investigations and legal proceedings.
The "premiale" anti-terrorist
legislation was created purusant to Legislative Decree No. 59 of March 21, 1978, which has already been referred to, converted
into Act No. 191 of May 18, 1978. For instance, premiale anti-terrorism
legislation has effected the crimes of kidnapping and holding a person against
his will for terrorist or subversive purposes. The legislation allows for
special extenuating circumstances for "any person who, having been
involved in a kidnapping/unlawful detention, dissociates himself from the
others and endeavors to free the person kidnapped and held against his
will" (Art. 289 bis (4) of the Penal Code). Reference to a person involved
in a kidnapping/unlawful detention excludes any application of this provision
to a sole perpetrator of such a crime and requires the request to be
dissociated. This prevents, among other things, any possibility of repentance
by all the others involved in the kidnapping/unlawful detention and clearly
highlights the aim of the law to find a means of shattering the relationship of
the group.
These
remarks also apply to the allowance of special extenuating circumstances
referred to in Article 4 of Act No. 15
of February 6, 1980, (also referred to above). This article provides that:
"For
offences committed for terrorist ends or with intent to undermine the
democratic order, subject to the provisions of Article 289 bis of the
Penal Code, the sentence of life imprisonment will be replaced by imprisonment
for a term of twelve to twenty years and the other sentences will be reduced by
between one third and one half for any person involved in a kidnapping/unlawful
detention who, dissociating himself from the others, endeavors to prevent the
criminal activity entailing other consequences or provides positive assistance
to the police or other judicial authorities in uncovering decisive evidence
leading to the identification or arrest of persons implicated in the kidnapping/unlawful
detention.
If an accused
is allowed to benefit from the extenuating circumstances referred to in the
preceding paragraph, the aggravating circumstances referred to in Article 1 of
this decree will not apply."
The
breaking off of all association with the group must be combined, either with
conduct having repercussions under the offence committed pursuant to Article
289 bis of the Penal Code, or with collaboration in the legal proceedings, as
indicated above. This second option which, in particular, has been widely used,
played a decisive role in the red terrorism crisis.
Article 5 of the same Act, however, has had little
practical effect. This article provides that:
"Other
than the cases referred to in the last paragraph of Article 56 of the Penal Code,
any offender guilty of an offence, committed for terrorist ends or with intent
to undermine the democratic order, will be excused punishment if he
deliberately thwarts the criminal act and provides decisive evidence in the
exact reconstruction of the facts and the identification of other
offenders".
The
strongest incentive, exemption from punishment, is, compared to Article 4,
subject to conditions that are more difficult to satisfy. It is not sufficient
to act in a way that avoids other consequences, rather the criminal act itself
must be thwarted. Therefore, the two conditions must both be satisfied, and the
collaboration is required to provide the means for an exact reconstruction of
the facts.
The
positive results obtained pursuant to Article 4 are matched by a
need to refine this tested instrument by introducing varied cases These
results, however, have fostered the drafting of new "premiale" provisions.
For
example, Act No. 304 of May 29, 1982 (Repentants
Act) precluded punishment for offences of criminal association if offenders
then demonstrated conduct leading to the disbanding of the criminal association
or gang;, droped out of the association or gang – or surrendered
to the authorities, provided information about the association or gang and thwarted
criminal acts. This Act also provided for significantly reduced sentences for
offences committed for terrorist or subversive ends if, in addition to the
elements stated above, other elements were satisfied. These additional elements involved an offender’s
contribution to the disbanding of a gang and/or collaboration with the
authorities.
Due to the
criticisms surrounding the "premiale"
Repentants Act, another Act, No. 45, was promulgated on February 7, 2001. This
new Act establishes more restrictive criteria and provides that any individuals
wishing to collaborate with the justice system have only six months to speak
out. It also provides that sentence remissions will not be granted immediately
and charges the State to provide witnesses and their families with greater
security and attention. To be recognized as a "pentiti doc" and to be granted access to the witness
protection program, statements made by those wishing to collaborate with the
justice system will have to be deemed important for the inquiries and provide
fresh information to the authorities. Article 16 quater of the Act prohibits
"calculated" statements. The six months period starts running
from the moment the individual states that he is prepared to assist the
authorities. Any information recalled after the expiry of the given 180 day
period will not be taken into account. If it proves impossible to use the
statements made to the public prosecutor's office or the police after the time
period allowed, a punishment will be imposed immediately. An individual
collaborating with the justice system will be placed in the witness protection
program, paid a living allowance of five times the welfare allowance
(approximately three million lira per month), given accommodation and any
traveling expenses, and legal representation costs will be reimbursed.
Therefore, benefits clearly yet these benefits are not obtained immediately.
For instance, "repentants" in prison may be granted certain
privileges but they can only be exercised after certain conditions have been
met. Inmates will have to serve at least
a quarter of their prison sentence or at least 10 years if they were sentenced
to life. They will be protected for as long as the danger persists, regardless
of what stage the trial is at. The program will also protect family members. In
addition to protection and financial assistance, witnesses at risk will be to
maintain their standard of living even if they are compelled to stop working
for safety reasons. Civil servants will maintain employment in their respective
departments, whereas freelance professionals will be granted a refund. If the
witness protection program requires the witness to be relocated to another
town, the witness may sell any personal real estate to the State at market
price.
Act No. 34
of February 18, 1987 is known as the Dissociation
Act because it terms provide for favorable treatment that applies to those
who have been found guilty and sentenced for terrorist offences, but have
broken off all relations with their organization.
In order
to legally break off relations with the terrorist organization, offenders must
both: "acknowledge that they have effectively acted and adopted behavior
that is objectively incompatible with continuing their membership of the group
and renounce violence as a tool in political conflict" (Art. 1) . The
sentence remissions provided for were generally considered as extenuating
circumstances from a technical point of view, because they could be revoked and
were applicable even after an irrevocable judgment.
The Italian system compared to the international legal framework
Given the
connections between various international terrorist organizations at
international level, which are united by common ideological aims countries have
realized the need to create international legal instruments to improve
international cooperation in the fight against, and prevention of, this type of
crime. Adding to this realization is the
reality of a connection between terrorist groups and cross-border criminal
organizations in terms of weapon and equipment supplies, gathering information
and obtaining financing. Also, a link even exists in terms of the very nature
of the crimes committed (such as, for example, hijacking).
The United
Nations played a decisive role in the drafting of legislative agreements by
adopting a non-organic, systematic approach, and addressing the matter of
punishing the various crimes which were the product of terrorist acts. This UN
reaction is also partially due to the fact that often it responds in a powerful
and emontional manner to particularly murderous acts of terrorism. More than 12
conventions were drafted under the auspices of the United Nations Organization
and came into force between 1969 and 2001. These conventions relate to
different types of terrorist acts, and include: piracy on the high seas, the
boarding of civil maritime vessels, the diverting of aircraft (to which at
least 4 conventions are devoted), aggressions and kidnappings of
internationally protected persons, United Nations personnel and diplomats ;
illegal acts committed against fixed platforms at sea, the taking of civil
hostages, the use of bombs and explosives for terrorist acts and the financing
of terrorism.
This
non-systematic approach can be explained by highlighting an under-evaluation,
in the past, of the international risk and little consideration given to
international organizations. At this time, iIt may be appropriate ,
however, to point out that the last two conventions, which were probably the
most important from a material point of view, refer to "terrorism"
and "terrorist acts".
Italy has
signed the 12 United Nations Conventions which have been officially ratified by
Parliament. Additionally, the Italian Parliment has also ratified the
European Convention on the Suppression of Terrorism (concluded in Strasbourg on
January 27, 1977), a significant multi-lateral European agreement. By
stipulating that political offences, offences connected with political offences
or offences inspired by political motives will not be considered as acts of
terrorism, this convention attempts to draw up a list of offences that can be
considered as terrorist acts. The main purpose of this convention is to
facilitate various forms of cooperation and, particularly, extradition.
It is
important to determine if, and to what extent, terrorist crimes may or may not
be governed by the concept of a political offence. This was a question that
attracted ad hoc regulation in the
Strasbourg Convention which, for the purposes of extradition and suppression,
expressly excluded the political nature of these crimes.
This
convention was ratified by Italy on February 28, 1986,
and came into force on June 1, 1986, but was made subject to a reservation,
based on the possibility that the offences referred to in the treaty might be
considered political offences under the terms of Articles 10 and 26 of the
Italian Constitution:
"Italy declares that it reserves the right to
refuse extradition in respect of any offence mentioned in Article 1 which it
considers to be a political offence, an offence connected with a political
offence or an offence inspired by political motives. In this case, Italy
undertakes to take into due consideration, when evaluating the character of the
offence, any particularly serious aspects of the offence, including:
-
that it created a collective danger to the life, physical integrity or liberty
of persons; or
- that it
affected persons foreign to the motives behind it; or
- that cruel or
vicious means have been used in the commission of the offence".
Recent amendments to Italian legislation since the events of September 11, 2001
In the wake of the
considerable emotional impact caused by the terrorist attacks of September 11,
and the commitments made at the international level among the United Nations
and the European Union, the Italian legislature decided to make a number of
amendments to current legislation in order to punish terrorism.The focus of
this in particular was international terrorism, and its financing. In this
context this section will examine Act No. 438 of December 15, 2001 and
Act No. 431 of December 14, 2001.
Act No. 438/2001 containing
"Urgent provisions to counteract the effects of international
terrorism", retains the substance of the pre-existing legal rules, and is
aimed at adapting domestic Italian terrorism law, to the serious emergence of
international terrorism (which was not covered by Article 270 bis of the Penal
Code). By passing Act No. 438/2001, Parliament completely redrafted Article 270
bis of the Penal Code, introducing the notion of terrorist end and specifically
included an international scope in the title of this legislation. It was named
"Associations formed for terrorist purposes, even international, and to
undermine the democratic order". The original provision presented two
problematic contradictions, the first which was between the heading of the
legislation ("Associations formed with terrorist ends, even international,
and to undermine the democratic order") and the wording used in the body
of the instrument, which did not mention criminalizing activity based on
terrorist ends acts of violence by undermining the democratic.
The inability to apply
Article 270 bis of the Penal Code to organizations operating in Italy with
international terrorists goals could have possibly made Italy a type of
"safe haven" for those organizations because the law denied them any
criminal importance. This rationale explains the Italian legislature's desire
to establish a change in Italian law to embrace the country's international
commitments.
Article 1 provides for two
new offences "Association formed with the end purpose of committing
international acts of terrorism" and "Assisting members". The
new regulations (contained in Articles 270 bis and 270 ter of the Penal Code)
are designed to punish activities aimed at promoting the formation of
associations with terrorist ends, "even international", that is
directed against "a foreign State or against an international institution
or organization", at forming associations, organizing them, financing them
or supporting them. The new regulations also introduce the concept of the
mandatory confiscation of "items that serve or have served to commit the
offence and items that are the consideration, the product or the reward of that
offence" as has already been provided with respect to offences concerning
Mafia association. The Act has also increased the powers of the authorities in
charge of investigation and suppression of domestic and international
terrorism, by extending the so-called "premiali"
measures – already provided for acts of domestic terrorism and organized crime
- to acts of international terrorism in an attempt to bring about the break up
of terrorist associations inside the country.
The Act increases police
powers of investigation (Articles 3, 4, 5 and 6) for crimes committed for
terrorist ends. It provides for rules governing police infiltration and
telephone tapping that go beyond the limits set in the Penal Code.
Article 7 of the Act also
extends ante delictum preventative measures
to include preparatory acts for the "commission of offences for terrorist
ends, even international". These measures provide for restrictions on
personal freedom, such as special surveillance for public safety reasons,
ordered by the court, and obligations or prohibitions attached to the right to
remain in Italy. They also provide for property and financial investigations,
involving family members also, and the seizure and confiscation of assets
believed to be the product of unlawful activities.
The change made to Article
7 (1) of the Penal Code is important because, in terms of criminal jurisdiction
over offences committed abroad, the adjective "Italian" has been
added after the words "person of the State", which reduces the scope
of the Act and prevents the Italian government from prosecuting acts of
terrorism committed abroad to the detriment of foreign countries. Finally, this
Act contains another provision (Article 270 ter) making it a criminal offence
for "any person who, aside from taking part in
the commission of the offence and favoritism, arranges or gives a livelihood,
hospitality, a means of transport or instrument of communication to persons who
are members of the associations referred to in Articles 270 and 270 bis".
The changes that punish the
financing of domestic and international terrorism, and provide for the seizure
and confiscation of assets, pursuant to Act No. 431/01, are among the
major international commitments made by Italy. Resolution 1373 of the United
Nations Security Council of September 28, 2001 establishes a duty for all
Member States to freeze the funds, financial assets and economic resources of
those who commit or attempt to commit terrorist acts or participate in or
facilitate the commission of terrorist acts. The Act containing "Urgent
measures to suppress and prevent the financing of international terrorism"
proposes to implement the regulations of the Council of the European Union and
the resolutions of the United Nations Security Council, regarding sanctions
against those who violate the provisions prohibiting transactions involving
goods, services or financial activities connected with terrorism.
Article 2 of Council
Regulation (EC) No. 467/2001, implementing United Nations Security Council
Resolutions Nos. 1267/1999 and 1333/2000, already provided for the freezing of
all funds and other financial resources belonging to any natural or legal
person, entity or body designated by the Sanctions Committee set up pursuant to
United Nations Security Council Resolution No. 1267/1999. Italian law, by means
of Legislative Decree No. 353 of 2001, converted into statute law by Act
No. 415 of November 27, 2001, provides for administrative sanctions for
any violation of Regulation No. 467.
Council Regulation (EC) No.
258/2001, implementing United Nations Security Council Resolution no.
1373/2001, provides for the freezing of the funds, financial assets and
economic resources of those who commit or attempt to commit terrorist acts or
participate in or facilitate the commission of terrorist
acts
Article 2 of
Act No. 431 of December 14, 2001, provides that any acts perpetrated in
violation of the provisions prohibiting the export of goods and services are
null and void and that provides for the freezing of funds or other financial
resources, inter alia, pursuant to the resolutions of the United Nations
Security Council. For these purposes, the Bank of Italy has issued instructions
to financial intermediaries for them to notify the Italian Foreign Exchange
Bureau of any suspect transactions made by individuals, entities or companies
in any way related to the events that struck the United Stated on September 11,
2001.
Under Italian law, the
freezing of economic goods and financial resources belonging to terrorist
organizations may be combined with a criminal law seizure. Under these
circumstances, the seizure is an annulment measure taken by the judicial
authorities (public prosecutor or judge) as part of criminal proceedings for
offences related to international terrorism. The aim of the criminal law
seizure may be preventative or to collect evidence. Any asset or resource may
be seized in criminal proceedings (money, bank accounts, securities, commercial
assets, etc.) provided it is an asset or resource connected with criminal
activities that are under investigation or currently on trial.
The Act also granted the
authority for the creation of the "Financial Security Committee"
(CSF), chaired by the Director General of the Treasury, involving
representatives of the Ministries of the Interior, Foreign Affairs, Justice,
Defense, the Bank of Italy, the National Corporate and Stock Exchange
Commission (CONSOB), the Italian Foreign Exchange Bureau (UIC), Customs, the
Department of Anti-Mafia Investigations (DIA) and the Italian Carabineer Force.
This committee is responsible for monitoring the operation of the illegal
financing of terrorism prevention and punishment system. Specifically it
functions to monitor in cases of a violation of national law and, in
particular, Community regulations, concerning the prohibition against exporting
goods and services, flight prohibitions and freezing of funds. The decree also
grants the power, in the future, to introduce ad hoc legislative measures to punish any conduct contrary to
Community regulations because the administrative sanctions will apply
automatically. The committee is also entitled to access any information held by
the Civil Service, by way of exception to trade secrecy rules and, if
necessary, request further particulars from the Italian Foreign Exchange Bureau
and the CONSOB.
The service that
coordinates international cooperation against terrorism attached to the
Ministry of Foreign Affairs is the counterpart to the CSF. This body was
created to handle the emergence of terrorism following the events of September
11, with greater efficiency. The goal of this service is to foster a united
approach and cooperative action by Italy at international forums dealing the
fight against terrorism in all forms.
The information and
security services have formed a working group called the "Financial
Activities Information Coordination Committee". Its role is to coordinate
the various bodies that gather information pertaining to the prevention of
financial activities that violate national security and promote terrorism.
Under the new regulations,
the possibility, when investigating how to prevent terrorist activity of
working under judicial supervision is of great importance The right to monitor
telephone conversations for reasonable periods prior to any legal action under
the direct responsibility of the State Prosecutor, provides a means of securing
intelligence in the potentially hostile environment of domestic and
international security. The shifting of jurisdiction for terrorist offences to
the public prosecutor of the principal city of the judicial district goes a
long way towards rationalizing the role of the courts.
Anti-Terrorist Legislation In Spain
José Luis de la Cuesta
Professor of Criminal Law and Director of the Basque
Institute of Criminology
Deputy Secretary General of the International
Association of Penal Law
Member of the Board of Directors of the International
Society of Criminology
1. Anti-terrorist legislation changed significantly in
Spain during the final phase of the dictatorship. At that time, the provisions
of the Penal Code dealt mainly with episodic or individual terrorism, or
terrorism by disorganized and unstable groups. Acts perpetrated by more
permanent organizations (the communists, anarchists and separatists) to
undermine the unity of Spain, the integrity of its territories and its
institutional order, were tried by the military courts on the basis of the Code
of Military Justice. Less than two months before the death of General Franco, Legislative Decree No. 10/1975 lengthened the
list of terrorist offenses and increased sentences to their maximum levels if
the victim was an agent of the authorities or a member of the security or armed
forces, going as far as the death penalty for crimes of abduction or
assassination.
This system was
progressively dismantled during the pre-constitutional period: terrorism was no
longer tried under military jurisdiction and finally, by December 1978, it was
so fully incorporated into the Penal Code that all direct reference to
terrorism had disappeared.
Continuing acts of
terrorism (mainly committed by the Basque separatist movement Euskadi ta Askatasuna or ETA) brought
about a rapid change in this state of affairs. The Constitution contained
provisions allowing for the restriction of some of the basic rights of members
of armed gangs or terrorist cells. The democratically elected parliament
quickly took advantage of these powers. This marked the beginning of a period
of frequent legislative reforms which have continued to the present day (1981,
1984, 1988, 1995, 2000, 2003). These reforms relate to all aspects of the
criminal law (including new criminal law applicable to juveniles). On some
occasions, the reforms were blatantly contradictory in terms of the criteria
they laid down to govern intervention in this area.
2. The concept of
terrorism is closely linked with the Constitution in Spain. Article 55 (2)
allows for the restriction of certain procedural rights in connection with the
acts of armed gangs or terrorist cells.
According to this provision,
the definition, according to Spanish law (which also punishes purely individual
terrorism (Article 577)), of whether offenses constitute acts of terrorism
requires the aim or end purpose of the acts of members or collaborators of
armed gangs, organizations or groups (or individual terrorists) to be:
- to cause
serious disruption to “public order”; or
- to
undermine the constitutional order.
The Penal Code does not contain a precise definition as to what is meant
by the term “terrorist group”. Case law combines a subjective criterion, the
end purpose of the criminal acts, with other objective criteria, a sufficiently
large group with a structure that demonstrates a degree of permanence
(including a hierarchy), possessing arms and explosives in a similar quantity
to that necessary for the deposit (Judgment of January 25, 1988). Since
Constitutional Court Judgment No. 199/1987, a group is deemed to be a terrorist
group if it engenders an intense feeling of insecurity in members of the
population so that “citizens are unable to exercise the fundamental rights
inherent in their ordinary and habitual coexistence as members of society”,
which is particularly caused “by the use of the weapons in their possession and
by the type of crimes they commit” and, finally, by the systematic commission
of serious offenses using weapons and explosives.
3. Membership of an armed group or of terrorist groups
and organizations is defined as a criminal offense in Articles 515 (2)
and 516 (2) of the Penal Code. It carries a sentence of between six and twelve
years imprisonment and offenders are denied the right to be employed
in a public capacity or be entrusted with public responsibilities for a period
of six to fourteen years.
The instigators and leaders of armed gangs and terrorist organizations
and anyone who runs such a group are liable to a term of eight to fourteen
years’ imprisonment and are denied the right to be employed in a public
capacity or be entrusted with public responsibilities for a period of eight to
fifteen years (Article 516-1).
Inciting others, conspiring or purposing to commit these offenses is
also punishable by a sentence one or two degrees lower than the sentence for
the offense itself (Article 519).
4. Aside from the offenses mentioned above, there are
regulations referring to so-called terrorist
offenses, separate from those dealing with terrorist groups and
associations, which feature among the offenses that are contrary to “public
order” (Title XXII, Volume II), Chapter V, Section 2.
Terrorist offenses include:
-
so-called individual and/or urban terrorism;
-
terrorist cooperation;
-
exalting terrorism; and
-
a series of common offenses aggravated by the fact
that they are committed for specified terrorist ends.
4.1. Individual
and/or urban terrorism (Article 577 of the Penal Code) means:
- committing
acts of homicide, causing bodily injury, abduction, unlawful detention, the
issue of threats or coercion through duress; or
- committing
acts of arson, criminal damage or destruction, and possession, manufacturing,
storage, trafficking in or supplying arms, munitions, explosive, inflammable,
incendiary or asphyxiating substances or devices, or their components;
without belonging to an
armed gang, terrorist organization or group, with the aim of undermining the
constitutional order or seriously disrupting public order, or contributing to
these ends by terrorizing the inhabitants of an urban community or the members
of a social, political or professional group.
The sentence imposed will
be in the upper range of the punishments laid down by law for such offenses.
4.2. Terrorist cooperation is defined as:
-
Procuring economic resources (Article 575) by violating the property rights of
others to benefit armed gangs and terrorist cells. The sentence applicable is
one degree higher than the punishment laid down by law for the same standard
offenses.
- The
performance, procurement or supply of any other act of collaboration (Article
576). The following are deemed acts of collaboration:
- information about, or surveillance of, persons, goods
or property;
- building, fitting and equipping, selling or using
lodgings or warehouses;
- concealing or transporting any person connected with
an armed gang or terrorist organization or group;
- organizing or taking part in any training program or,
generally, any similar cooperation or assistance, or any economic or other form
of involvement in the activities of armed gangs or terrorist organizations and
groups.
Terrorist cooperation carries a sentence of five to ten years and a
penalty of 18 to 24 months. However, there is provision for heavier
sentencing:
-
if the information about, or the surveillance of,
individuals endangers their lives, physical safety, freedom or property; the
sentence applicable will be in the upper range of the punishments laid down by
law for this offense;
-
if the act is actually committed, those cooperating
are deemed to be co-perpetrators or criminal participants in the offenses
committed.
4.3. Following the latest law reform, exalting terrorism has replaced “apology” (support or encouragement
of a criminal offense in public or in the press) because there was some doubt
as to the constitutionality of the previous rules.
Article
579 punishes any praise or justification of terrorist offenses or of those
involved in committing them through any form of public expression or broadcast.
Exalting terrorism also covers acts that serve to discredit, scorn or humiliate
the victims of terrorist offenses, their families or relations.
This offense carries a
sentence of one to two years imprisonment (and some freedom restrictions – such
as prohibiting the offender from approaching the victim – Article 47 of the
Penal Code).
4.4. Among those common
offenses classified as terrorist offenses due to intent are:
- arson and
criminal damage (Article 571) punishable by a term of imprisonment of 15 to 20
years, without prejudice to any additional punishment that may apply if there
has been an attack on someone’s life, physical safety or health; causing loss
of human life (Article 572 (1)) carries a sentence of 20 to 30 years
imprisonment; causing serious bodily harm, abduction and unlawful detention
(Article 572 (2)): imprisonment for 15 to 20 years; any other bodily harm,
unlawful detention, threats or coercion by duress (Article 572 (3)):
imprisonment for 10 to 15 years;
- weapons,
munitions, explosives, inflammable and incendiary devices (Article 573): 6
to 10 years imprisonment;
- any other
offense or wrongdoing (Article 574); a sentence in the upper range of that
normally imposed for such offenses.
4.5. Acts of terrorism are also affected by a series of common provisions contained in the Penal
Code.
- Preparatory acts for the commission of
these offenses, including conspiring, purposing or inciting others (Article 579
(1)) are punishable by sentences one or two degrees lower that those for the
corresponding prepared offenses.
- For
terrorist offenses, absolute
disqualification (Article 579 (2)) is imposed as the principal sentence
“for a term of six to twenty years more than the term of the custodial
sentence, taking the seriousness of the offense, the number of offenses
committed and the offender’s circumstances into consideration.”
- Any
foreign sentences imposed are taken into account for the purpose of assessing international recidivism (Article 580).
If the offender dissociates himself
(Article 579 (3)), the sentence is reduced by one or two degrees.
Dissociation means that the offender has:
-
voluntarily given up his criminal activities; and
-
gives himself up to the authorities, admitting the
activities in which he has been involved and, also, cooperates actively with
the authorities to stop the offense being committed or provides effective
assistance in obtaining decisive evidence leading to the identification or
capture of other offenders or to prevent the acts or development of armed
gangs, terrorist organizations or groups to which he belonged or with which he
collaborated.
Finally, terrorist
offenders are frequently concerned by the rules laid down in Article 78 of the
Penal Code. This article provides that the amount of time to be served before
an inmate is entitled to be classified as a third level penitentiary inmate, to
temporary exit rights or prison privileges or to release on probation must be
calculated on the basis of the aggregate sentence imposed where this exceeds
double the legally stipulated time limit for serving sentences (in
Article 76), i.e. three times the term of the longest sentence without
this exceeding:
- twenty
years, in general;
- twenty
five years, in exceptional circumstances, where the offender has been convicted
of at least two offenses and one of these offenses carries a maximum prison
sentence of twenty years;
- thirty
years, where the offender has been convicted of at least two offenses and one
of these offenses carries a prison sentence exceeding twenty years; or
- forty
years, where the offender has been convicted of at least two offences and two
of these offenses carry a term of imprisonment exceeding twenty years or he haq
been convicted of at least two terrorist offenses and one of these offenses
carries a prison sentence exceeding twenty years.
5. From a procedural
point of view, and according to what is allowed under the Constitution, a
series of restrictions has been imposed on the basic rights of members of armed
gangs or terrorist cells (or those acting jointly with them).
Police custody may be
extended to up to five days, 48 hours longer than the standard 72 hour period
(Article 520 bis of the Penal Procedure Act), which applies without the right
to communicate with the outside world and without the right to choose legal
counsel (a lawyer is appointed automatically) during police questioning
(Article 527).
The right of privacy at any
home where such individuals have been hidden or sheltered and the right to
privacy of communication for individuals under suspicion in investigations into
such offenses (Articles 533 and 579 Penal Procedure Act) are also limited.
Also, acts of terrorism are
investigated and judged by the Audiencia
Nacional (a specialized central court that sits in Madrid) and are governed
by the principles of extraterritoriality and universal jurisdiction. Accused
terrorists employed in a public capacity or entrusted with public
responsibilities are suspended from their jobs (Article 384 bis of the Penal
Procedure Act) and they may be remanded in custody for periods exceeding the
standard custody periods and will be detained for a further period of one month
if the public prosecutor appeals against the decision of the court to release
them (Article 504 bis of the Penal Procedure Act).
6. Terrorism is also a case for specific treatment under
juvenile criminal law. Following the
introduction of a new system of treatment for juvenile delinquents under
Institutional Act No. 5/2000 (which came into force in January 2001), the
exceptional seriousness of acts of terrorism was the subject of Institutional
Act No. 7/2000, which, in an attempt to provide a broader spectrum of
punishments and general preventive measures, disregarded the main purpose of
the legislation concerning juvenile delinquents by extending the period of
incarceration in “closed conditions” (for young offenders found guilty of acts
of terrorism, where any individual act carried a term of imprisonment of more
than 15 years) to up to ten years – plus a period of probation of five
years – for juveniles of at least 16 years old (and less than 18 years) and up
to five years - plus a period of probation of three years – for juveniles of at
least 14 years of age (and less than 16 years). A period of absolute
disqualification of 4 to 15 years is added to these measures of incarceration
under mandatory “closed conditions”.
Acts of terrorism committed
by juveniles less than 18 years old are within the jurisdiction of the Central
Juvenile Judge of the Audiencia Nacional,
whose decisions in matters of prevention prevail over any sentences imposed by
other judges or juvenile court divisions, served (in the same way as any final
measures prescribed according to the adult legislation) in institutions (and
under the supervision of specialist staff) that the government places at the
disposal of the Audiencia Nacional by
agreement with the Autonomous Communities.
7. At the beginning of the 1980s, legislation was passed
whereby the State accepted to pay damages and compensation to the victims of terrorism for the acts of
terrorism that they had suffered.
Regulated separately from
the system of governmental assistance to the victims of violent crime and
sexual offenses (Act No. 35/1995 and Royal Decree No. 738/1997), the basic
legal source of the government’s treatment of the victims of terrorism is the
Victims of Terrorism Solidarity Act No. 32/1999 of October 8, 1999, amended in
2000 and 2003, and the legislation that expands on its basic principles, and Royal Decree No. 288/2003 of March 7, 2003
approving a new regulation governing compensation and assistance for the
victims of terrorist crimes.
According to
these regulations, the State is bound to compensate for personal injury
(whether physical or psychological), the costs of medical treatment and any
damage to property caused to those who are not responsible for criminal acts by
or as a consequence of terrorist offenses committed by armed gangs or terrorist
cells, or by those seriously disrupting public order or public safety. In
addition, there is also provision for financial aid for research and studies,
psychological or psycho-pedagogical assistance and other extraordinary aid
intended, in exceptional circumstances, to alleviate the personal or family
hardship of victims that are not covered or are insufficiently covered by the
standard aid programs.
The right to
benefit from these allowances requires proof of a causal link between the
damage or suffering and terrorism. The government report and, depending on the
circumstances, the final judicial report, will normally provide evidence of
this link. Compensation for damage to property is subject to compensation under
insurance policies and any other compensation payable for the same case by
another public agency or authority.
The aid and compensation
payments are handled by the Ministry of the Interior and are processed
expeditiously and with emphasis on the interests of the victims, avoiding any
formalities that might create delays or complicate claims. If the facts of a
case are well-known or information about a case is already filed in the
archives of the Ministry of the Interior, the claimant is not required to
provide any form of documentary evidence.
8. In conclusion, Spanish
anti-terrorist criminal legislation is a typical example of emergency
legislation containing exceptions to the general rules. This legislation covers
a broad range of offenses. The scope of offenses is often very wide and the
treatment of offenders unorthodox compared with strict rules of legality.
Offenses carry sentences that exceed the standard limits set out in the Penal
Code. The period of police custody may be extended. The right to legal advice while in police
custody is restricted. Communications may be monitored. Other exceptional
procedural and penitentiary measures have been implemented that even go as far
as affecting juvenile criminal law. The law even includes special measures to
assist the victims of these offenses. The victims of terrorism are covered by a
special compensation program, separate from the general legislation applicable
to the victims of violent crime and sexual offenses. Specific legislation, the
Victims of Terrorism Solidarity Act, has been passed in their favor and they
benefit from aid programs set up by some Autonomous Communities.
9. Anti-terrorist policy has recently given rise to new
legislative developments, but this time outside the scope of the criminal law.
The Political Parties Act
No. 6/2002 outlaws a new form of action or conduct which does not carry any
criminal or administrative sanction, but allows for the dissolution of
political parties which pursue activities damaging to the foundations of
democracy, particularly where the aim of these activities is to destroy or
undermine individual freedom, eliminating or disabling the democratic system
(Article 9). The commission of certain “serious and repeated” acts is deemed to
be a demonstration of this form of unlawful conduct. Evidence is provided by
means of the repetition or accumulation of acts included in a long list such as:
express or tacit support for terrorist acts, exculpating or minimizing the
significance of terrorist acts, encouraging a culture of civil conflict and
confrontation (or aimed at intimidating, reversing the opinion, neutralizing or
socially isolating those who oppose terrorism), allowing individuals who have
been found guilty of acts of terrorism and who have not publicly denounced
terrorism to sit as members of the executive bodies of the party, including
such individuals in their electoral lists or allowing individuals who have a
dual political affinity to remain members of the party; using symbols, messages
or other items representing, or identified with, terrorism, violence or other
associated conduct as tools for the party’s activities; making over electoral
rights or privileges enjoyed by political parties to terrorists or those
collaborating with terrorists; regular collaboration with groups or entities
acting systematically in concert with a violent or terrorist organization, or
protecting or supporting terrorism or terrorists; giving support to terrorism
through institutions of government by means of administrative, economic or
other measures; promoting, giving coverage to, or participating in activities
rewarding, paying homage to, or honoring terrorist or violent acts or those who
commit them or collaborate with them; giving coverage to acts of disruption,
intimidation or social duress relating to terrorism or violence. On the basis
of this new legislation – which is strongly criticized by civil liberty
movements but nevertheless declared constitutional by the Constitutional Court
(Judgment of March 12, 2003) – the Special Division of the Supreme Court
(Judgment of March 27, 2003) formed for this purpose, held that Batasuna, the political party which forms
part of the so-called Basque National Liberation Movement, of which ETA is a
member, was unlawful.
10. The sheer number of victims of terrorism has driven
those suffering directly from acts of assassination, injury, persecution and
attacks (and their families, relations and friends) to get together, to find
the human warmth and companionship that they need to try to transform their
pain into something positive and overcome their state of being victims. The
social presence of such associations obviously raises the question
(particularly since the truce declared by ETA in 1998, that was broken in 1999)
of just how much social and political initiative should be afforded to the
victims of terrorism.
Obviously, it cannot be
expected that the authorities will merely channel and apply their proposals and
courses of action; responsibility for tackling and fighting terrorism and its
consequences rests with society as a whole and its leaders. They cannot hope to
escape this responsibility given that all the victims or the vast majority of
them support their objectives and strategies. However, being a victim of
terrorism does not automatically mean that the positions taken and proposals
made by the victims should be accepted without reserve from a political or justice
standpoint.
However, it should be said
that when decisions are taken regarding subjects that are particularly
sensitive, for everyone and for the defense and development of fundamental
values, it is essential to consider the views of victims and the groups to
which they belong: those social groups potentially most affected by such a
decision in a social and democratic system governed by the rule of law should
always be consulted and this not only (although
this is indeed of great importance) to avoid making their circumstances even
more difficult to bear, but particularly, because, to avoid social
demoralization, individuals and groups of individuals must learn from the
experience of being a victim which is essential for a full understanding of the
reality of the situation.
This is also (and
especially) applicable in any process of dialogue to persuade people to abandon
terrorist violence, if we do not wish to see victims once again used as
instruments for political ends in the name of peace and justice. While waiting
for the end of terrorism to come (and until this day arrives), the victims are
essential to ensure that justice is done inside a justice system not vengeful
or retaliatory but rather based on rehabilitation and encouraging an acceptance
of responsibility and favoring reconciliation. This process of justice is not
incompatible with generosity and forgiveness; it is incompatible with
renouncing truth and with collective amnesia. For forgiveness to be effective
and not lead to individual or social demoralization, it is absolutely necessar
to be aware of what is pardoned and the acceptance of pardon by the perpetrator of the suffering himself.
Victims’ rights in German criminal trials
Stephan
Maigné
Member of the Berlin Bar
The
author specializes in trials involving terrorism. He currently represents
French victims of the Rue Marbeuf, Tain L’Hermitage and Gare St. Charles
attacks before the District Court (“Tribunal de Grande Instance”) in the
criminal prosecution of Johannes Weinrich.
PRELIMINARY COMMENT
German criminal trials
grant injured persons who appear to have a special need for protection the right to participate fully
throughout the criminal proceeding. Under article 395 of the StPO, the German
Code of Criminal Procedure, as discussed further herein, the victim of a
specific criminal violation may, as a plaintiff, seek civil damages in the
criminal trial (a “civil plaintiff”). The civil plaintiff may pursue in that
proceeding his personal interest in obtaining compensation (cf. BGH 28, 272, Federal Court of Justice). Thus the
civil plaintiff, through active participation (statements, questions, motions),
can influence the outcome of the proceeding as well as defend himself in the
event that his injuries are denied or minimized (cf. Altenheim JZ – Lawyers’ Journal - 01, 796).
Through his legal status,
the civil plaintiff is a party to the trial with specific rights. Although he
enjoys rights that normally belong exclusively to the Prosecutor, his exercise
of those rights is totally independent of
the Prosecutor.
It should be mentioned here
that, for reasons involving the protection of minors, no civil plaintiffs are
permitted in prosecutions of minors (14-18 years old), in accordance with
article 80 par. 3 of the Juvenile Courts Act (JGG).
FOUNDATIONS OF PROCEDURAL LAW
The right to join a public
prosecution as a civil plaintiff is governed by article 395 of the StPO.
Victims whose physical well-being, right to sexual choice or personal freedom
have been violated as a result of a criminal offense or an attempted felony
(murder or voluntary homicide) may join the criminal proceeding as civil
plaintiffs.
Under article 395, par. 2,
no. 1 of the StPO, the same right is accorded to the father, mother, brothers
and sisters, spouse or companion of a person killed by a felonious act.
It should be noted here
that, under article 406 h of the StPO, a known victim of one of the above-cited
criminal offenses must be informed of his right to join as a civil plaintiff.
The rights of the civil
plaintiff are governed by article 397 et
seq. of the StPO. Thus, after joinder, the civil plaintiff, in accordance
with article 397 of the StPO, is authorized to attend the main trial even if he
is to be a witness. This is an exception to the general rule in German criminal
trials that witnesses may not attend the trial before they testify. The civil
plaintiff thus has the opportunity, as a result of the provisions of article
397 of the StPO, to hear the defendant’s statements.
In addition, the civil
plaintiff has the right to recuse a judge (art. 24, 31 StPO) or an expert (art.
74 StPO), to ask questions (art. 240, par. 2 StPO), to oppose rulings of the
presiding judge (art. 238, par. 2 StPO) and object to questions (art. 242
StPO), to request the production of additional evidence (art. 244, pars. 3-6
StPO) and to make statements (arts. 257, 258 StPO).
In accordance with article
400, par. 2 of the StPO, moreover, the civil plaintiff has the right to file an
immediate appeal against any decision rejecting a request to begin or suspend
the main phase of the trial, provided that it concerns the act as a result of
which he was permitted to join as a civil plaintiff.
In accordance with article
401 of the StPO, the civil party has the additional right to appeal from the
judgment, regardless of whether the prosecution itself does or does not appeal.
As one would expect, the
civil plaintiff also has the right to examine the full criminal file from and after the time that his joinder as a
civil plaintiff is declared valid. However, the civil plaintiff may only
exercise this right with the assistance of a lawyer, since German criminal
procedure does not permit the examination of files by individuals or
organizations. Through the lawyer’s ability to examine the file, the civil
plaintiff thereby may have access to all of the evidence and be able to review
the case, notably even before the trial begins. This affords him the
opportunity, before the trial begins, to influence the proceeding by providing
information or requesting investigation.
In summary, it thus can be
seen that, all things considered, in German criminal trials the civil plaintiff
enjoys the same legal rights as the defense. Since he also must be considered
independent of the prosecution, he can promote his own interests independently
of those of the court authorities.
In view of the complexity
of German criminal trial law, it is absolutely essential for the civil
plaintiff to be represented by counsel throughout the proceeding. The
Legislature was aware of the fact that the victims of terrorist attacks often
are poor and without the means to pay for legal services. As a result, in 1999
the German legislature tried to ensure better protection for the victims of
terrorist acts by adopting article 397a of the StPO. Victims whose rights have
been adversely affected by an attempted felony falling under articles 211 and
212 of the StGB, the German Penal Code, (murder and homicide) are given the
assistance of counsel on request. This means that all attorneys’ fees are paid
from public funds, and therefore by the State. Accordingly, a civil plaintiff
is not required to undertake any financial risk. As a result, the victim of an
act of terrorist violence avoids the uncertainty of not knowing whether the
perpetrator will be able to reimburse him for his trial expenses in the event
of conviction. Most often, the convicted perpetrator of a terrorist attack also
lacks financial resources sufficient to reimburse the civil plaintiff’s
expenses.
The adoption of article
397a of the StPO has decisive significance, particularly in German criminal
trials. It should be noted that, as a result of the procedural complexity
surrounding terrorist attacks, the trial may take years; it is well-known that
the trial of the Mykonos attack, during which members of the Iranian opposition
were killed by the Iranian secret service, lasted more that three and one-half
years. The La Belle trial, where the Libyan secret service exploded a bomb in a
Berlin discotheque, lasted four years. Similarly, the trial presently underway
against Johannes Weinrich, member of the so-called Carlos group, will take
several years. Without article 397A of the StPO, their lack of resources would
deny the victims any opportunity to vindicate their rights.
The only shadow cast by
this provision is the position of the surviving relatives of persons killed in
terrorist attacks, whom the law treats less well than injured victims. Thus,
even in the case of terrorist attacks, such survivors have no possibility of
legal aid. The result of this rule, which is difficult to understand, is that
persons who have been only slightly injured (cuts and bruises, etc.) receive
aid, but the surviving relatives of someone killed in the attack do not. A
proposal by the federal council of one German state has tried to remedy this
injustice, but to date the Legislature has not yet changed the law. It is true
that surviving relatives still have the right to file a request for legal aid
and to retain a lawyer if this assistance is granted. But the ability to obtain
legal aid is so narrowly circumscribed that, in the end, only the unemployed or
those on welfare are able to participate in a terrorist proceeding as surviving
relatives.
Finally, it must be added
that such organizations as SOS-Attentat
in France are not permitted to become civil plaintiffs in German criminal
trials. This right is reserved for natural persons.
The practical experience of
recent years has shown that victims’ rights have been strengthened not only
within the provisions of criminal law, but also in that judges themselves
increasingly take victims into account, and respect them as independent actors
in a criminal proceeding. At a time when the number of terrorist attacks is
constantly increasing, this development should be welcomed as very positive.
The fact that, under the conditions previously discussed, any natural person
may join as a civil plaintiff, regardless of his nationality, also deserves
mention. The only requirement is that the trial take place in the Federal
Republic of Germany; whether the defendant or the civil plaintiff is or is not
a German national is irrelevant. Thus there already has been a trial in Germany
of one of the perpetrators of September 11th in which all of the
civil plaintiffs were Americans.
COMPENSATION OF VICTIMS
A procedure relating to
victims’ claims for compensation before the criminal court (“Adhäsionverfahren”) was introduced into
German criminal trials in articles 403 et
seq. of the StPO. Thus, under article 403 of the StPO, the injured party or
his heirs can assert against the defendant in the criminal trial property
rights arising from the criminal violation, which normally would be within the
jurisdiction of the civil courts but are not yet the subject of proceedings,
without regard to their monetary value.
The provisions of article
405 of the StPO have proved problematic here. They state that the court may
decline to decide the claim for compensation it is not well-suited to be
pursued in the criminal proceeding, in particular when it would require adjourning
the case. Unfortunately, it has been seen in practice that the criminal courts,
lacking experience in civil procedure, particularly with regard to judgments
rendered on damage claims, often use this provision under the pretext that
consideration of the civil claims would considerably delay the criminal
proceeding. It is obvious that terrorism trials involve a significant number of
civil plaintiffs, so that the courts have little difficulty in using this
provision.
Finally,
in asserting damage claims, civil plaintiffs remain limited to the route
provided by civil law. If the civil plaintiffs were victims of an act of State
terrorism, the civil law affords them no opportunity to assert claims against
the State, since according to applicable law in the Federal Republic of Germany
neither States nor their heads of government can be sued. Victims thus remain
dependent on the assistance of their own countries. In the LaBelle discotheque
case, negotiations over compensation are taking place as a result of pressure
exerted by the federal government on the Libyan government. By their very
nature, such negotiations are long and arduous, and the victims will have to
wait still longer before receiving compensation.
It was only as a result of
the most recent attacks, particularly the one in Djerba, that on April 24, 2002
the federal government authorized an extra-budgetary sum of 10 million Euros
for victims of terrorist attacks in order to assist them and their families
rapidly, without red tape. Victims of terrorist attacks abroad, in particular,
should benefit from these special services. In implementing this government
decision, the federal ministry of justice has promulgated the “Directive on
extraordinary benefits under the 2002 federal budget in aid of the victims of
terrorist violations.” For budget policy reasons, however, the directive will
not be retroactive. Payment of extraordinary benefits is reserved solely for
victims of attacks after January 1, 2002. Unfortunately, this directive comes
too late for the innumerable victims of the terrorist attacks of recent
decades.
Presentation of the Irish
Anti-terrorist Legislation
William A. Schabas
Professor of human rights law, National University of Ireland, Galway,
Director, Irish Centre for Human Rights
&
Clémentine Olivier*
Doctoral candidate, Irish Centre for Human Rights
Background
For further historical
analysis, see Report of the Committee to Review the Offences Against the State
Act, 1939-1998. Government publication, May 2002. See in particular Chapter 4,
“Historical Background to the Offences Against the State Act 1939-1998”.
The
Republic of Ireland came into being as an independent State in 1922, while the
north-eastern part of the island (six counties known as Northern Ireland)
remained part of the United Kingdom. The division of the island between an
independent State and territory under British control has been a source of
tension since that time. The Irish Republic Army remained active as a
paramilitary organisation following independence with the avowed goal of
uniting the island. Discrimination against Catholics in Northern Ireland
sparked a political drive for equality in the late 1960s. The resulting political led to a violent
conflict between republican and loyalists paramilitaries and the State in
Northern Ireland. Participants in the conflict, and notably the various
factions of the IRA, had ties with terrorist organisations throughout the
world. This violence had - and still has
– a great impact on the security of the Republic of Ireland itself.
The primary piece of
anti-terrorism legislation in the Republic of Ireland is the Offences Against
the State Act, promulgated in 1939, and subsequently modified by four
Amendments, in 1940, 1972, 1985 and 1998. The initial intention of the Act was
to regulate “conduct calculated to undermine public order and the authority of
the State.”
An Irish Republican Army
(IRA) ceasefire came into effect in 1994, and although the peace process might
still be described as a work in progress, the major paramilitary campaign has
come to an end. Peace negotiations in Belfast between all parties led to the
Good Friday Agreement, signed in 1998 by nationalist and unionist leaders in
Northern Ireland as well as on behalf of the United Kingdom and the Republic of
Ireland. This Agreement deals with various aspects of life in Northern Ireland
and the issue of the relationship between the two parts of the island. It also
provides for the creation in the Republic of the “Committee to Review the
Offences against the State Acts 1939 to 1998”, which was established in May
1999. In May 2002, the Committee issued its report, recommending some
modifications to the current domestic Irish anti-terrorist law, while
suggesting that some other aspects of the law should remain unchanged.
Following the events of
September 11th 2001 and the attacks on the United States of America,
the Committee considered whether it was necessary to reopen its report to take
these events into account. It was ultimately decided not to do so. The main reason
indicated by the Committee for this decision was that international
organisations and regional communities were still in the process of elaborating
proposals to strengthen the struggle against terrorism. As these proposals will
impact on Irish national law, “it seemed right to attempt not to duplicate the
national and international work underway”.
At the time of writing, a
Criminal Justice (Terrorist Offences) Bill 2002 is under discussion in Dáil
Éireann (the Irish Parliament). This new legislation aims to fill the gaps of
existing law which “has been primarily framed with reference to the threat
posed by groups indigenous to Ireland”; and it appears that, according to the
Irish government, “in the changed environment created by the events of 11 September”,
“additional legislative provisions to counter the international terrorist
threat” are needed.
National anti-terrorist laws
In Irish law, there are no legislative measures
dealing specifically and solely with terrorism and organised crime. However, the
Offences Against the State Act 1939 – 1998 is associated primarily with
terrorism.
The
Offences Against the State Act 1939 - 1998
* General presentation
The original Offences
Against the State Act was promulgated in 1939. The last amendment to the Act
was in 1998. The Offences against the State (Amendment) Act of 1998, adopted as
a legal response to the Omagh bombing, introduced modifications to domestic law
that have been termed “the strongest and most severe pieces of anti-terrorist
legislation in the history of the Republic”. However, perhaps because of the
shock and horror provoked by the Omagh massacre, there was initially little
focus from either civil society or politicians on the limitations placed on
civil liberties by the 1998 Amendment. Today, the Act is criticised by some, as
its special measures to combat terrorism and organised crime “do not take
sufficient recognisance of human rights norms and are not adequately supported
by empirical date or persuasive arguments”.
The Offences Against the
State Act 1939 - 1998 covers the following issues: definition of the offences
against the State (Part II); unlawful organisations (Part III); miscellaneous
(Part IV, which covers some procedural issues); special criminal court (Part
V); and internment (Part VI).
* Creation of Special Criminal Courts
Regarding
the competence of the “Special Criminal Court”, the Offences Against the State
Act stipulates that:
“If
and whenever and so often as the Government is satisfied that the ordinary
courts are inadequate to secure the effective administration of justice and the
preservation of public peace and order that that it is therefore necessary that
[the Part V of the Act on the Special Criminal Court] should come into force,
the Government may make and publish a proclamation declaring that the
Government is satisfied as aforesaid and ordering that [Part V] shall come into
force”.
The Government may
establish as many such courts as they consider necessary.
This is a pretty drastic
system, where the members of the Special Criminal Courts are appointed, and
removable at will, by the Government. Only professional judges, barristers,
solicitors, and officers of the Defence Forces may be appointed as members of a
Special Criminal Court. Every Special Criminal Court has control of its own
procedures, and “shall for that purpose make, with the concurrence of the
Minister for Justice, rules regulating its practice and procedure…”.
There is
no guaranteed “right to appeal” as such, however a person convicted by a
Special Criminal Court may appeal to the Court of Criminal Appeal provided he
or she obtains leave to do so.
Overall it can be said that
procedure under the Special Criminal Courts offers almost no guarantee against
risk of abuse by the executive branch of the State; it is in every respect
uncommon as it grants these courts extraordinary powers, based on a broad
discretion of the government to declare such Courts necessary. The Human Rights Committee has ruled that the
system is incompatible with the fair trial provisions of the International
Covenant on Civil and Political Rights, and the majority of the Committee to
Review the Offences Against the State Act 1939 – 1998 recommends that the Act
should be reviewed in order to meet the standards set out by the Human Rights
Committee.
The Special Criminal Court
is still in force, but its workload has decreased regularly, and “it may be
expected that the workload of the court will decline over the long term”.
* Powers of arrest and detention
Internment (or detention
without trial) is provided for in the laws of the Republic of Ireland. Under
the Offences Against the State Act 1939 - 1998, this Part of the Act comes into
force depending solely on the Government’s decision that these powers are “necessary to secure
the preservation of public peace and order”. The provisions on internment grant
extraordinary powers to any Minister of State, who may order the arrest and
detention of anybody who is engaged in activities which are, in his or her
opinion, prejudicial to the preservation of public peace and order or to the
security of the State.
Such drafting gives a very
broad margin of appreciation to the executive arm of the State - there is no
requirement that the individual should be suspected of engaging in terrorism or
any offence. Globally, the executive has great control over the operation of
the internment provisions in individual cases. A person detained under Part VI
of the Act may apply to the Government to have the continuation of his or her
detention reviewed by a Commission (as created by section 8 of Part VI). The
Commission consists of three persons, two of whom must be judges or former
judges or barristers or solicitors, and one of whom must be an officer of the
Defence Forces. Members of the Commission are appointed and removable by
the Government, so the Commission can not be considered as independent. As such, a system of internment would be
contrary to the guarantees provided by the European Convention on Human Rights.
Ireland cannot activate Part IV of the Offences Against the State Act on
internment without first derogating from the European Convention.
Given the fact that
internment involves a draconian interference with the fundamental rights to
liberty, due process, freedom of expression and freedom of association, it is
not surprising that the members of the Committee to Review the Offences Against
the State Act are divided on the question of internment. However, the majority
of the Review Committee
“hold the view that the use
of internment can not be ruled out as a matter of principle in all
circumstances. They view internment as a measure which could, under appropriate
conditions, constitute a legitimate, exceptional response to exceptional
circumstances”.
Yet the Committee is not
without criticism of the system of detention as provided for in the current
Offences Against the State Act, and suggests several modifications, should the
law be updated.
Besides the issue of
internment, the power to detain suspected terrorists is also broadened. A
member of the Garda Síochana (the Irish police force) may, “without warrant
stop, search, interrogate and arrest any person” that he or she suspects has
committed or is about to commit a relevant offence. This drafting grants
extraordinary powers to police without offering safeguards against possible
abuse.
The 1998 Amendment extends
from 48 to 72 hours the period of time over which a suspect may be detained if
the officer “has reasonable grounds for believing that such further detention
is necessary for the proper investigation of the offence concerned”. In this
situation, the Officer shall apply to a judge of the District Court for a
warrant authorising the detention, and the judge shall issue such warrant only
if he or she “is satisfied that such further detention is necessary for the
proper investigation of the offence concerned and that the investigation is
being conducted diligently and expeditiously”. The person to whom the
application relates shall be produced before the judge concerned.
* Right to silence
The 1998
Amendment also curtailed the right to silence (Sections 2 and 5 of the
Amendment). The Act prohibits a finding of guilt solely on the accused's
silence – yet the judge is allowed to use silence as corroborating evidence.
Under Section 2(1), after an arrest, but prior to being charged, the accused
must answer questions material to the investigation in order to prevent the
court from using silence as corroborating evidence of guilt. Second, Section 5
of the Amendment also limits the accused's right to silence: this section
asserts that if the accused fails to mention a fact during police
interrogation, and then later relies on that fact during his defence, the judge
may draw an inference from this original silence. Again, this inference amounts
only to corroborative evidence.
* Freedom of expression
In broad terms, the
Offences Against the State Act 1939 - 1998 is very intrusive on issues of
freedom of expression, and it sets out important limitations on freedom of the
press and printed material in general. For example, copies of an issue
“ordinarily printed outside” Ireland may be seized and destroyed “whenever the
Minister for Justice is of the opinion” that this publication “either is
seditious or contains any matter the publication of which is in contravention”
of the Act.
Other
Legislation
Various other specific Acts
are relevant to anti-terrorism; they are concerned with aviation security,
particularly dangerous substances, or the use of firearms.
Regarding products of
crimes, the Criminal Assets Bureau Act 1996 creates a bureau in charge of
identifying and taking appropriate measures regarding the assets, wherever
situated, of persons which derive or are suspected to derive, directly or
indirectly, from criminal activity.
The Criminal Justice (Terrorist Offences) Bill, 2002
As noted, this Bill is
still under discussion and may be modified. Generally speaking, the Bill gives
effect to a number of international instruments directed to terrorism, in
addition to United Nations Security Council Resolution 1373. As a result, the
Bill amends the current law “more generally to enhance the capacity of the
State to address the problem of international terrorism, and makes provision
for a number of additional measures directed in particular to the financing of
terrorism.”
The 2002
Bill creates new offences, with the previous Acts consequently amended to adopt
new procedures.
The Bill
first gives effect to the European Union Framework Decision on Combating
Terrorism by making provision for the first time for terrorist offences as a
separate and distinct category of offence in Irish law. It also gives effect to
three United Nations Conventions directed at specific manifestations of
terrorism, namely (1) the Convention Against the Taking of Hostages; (2) the Convention
on the Prevention and Punishment of Crimes against Internationally Protected
Persons; and (3) the Convention for the Suppression of Terrorist Bombings.
Finally, it also gives effect to the United Nations Convention for the
Suppression of the Financing of Terrorism by creating an appropriate procedure,
for example, by allowing for the freezing of funds used or intended for
terrorist offences or terrorist groups.
According to the 2002 Bill,
terrorist groups that commit terrorist offences in or outside Ireland will be
unlawful organisations for the purposes of the Offences Against the State Acts
1939 – 1998, and the relevant provisions of those Acts will apply to such
groups. In certain circumstances the Bill also allows assumption of
jurisdiction in relation to terrorist offences and offences relating to
terrorist groups when committed outside Ireland. It allows the freezing and
confiscation of funds which are being used, or which may be intended to be
used, for the purpose of committing terrorist offences, including financing
terrorism.
Finally,
the 2002 Bill creates new offences of hostage taking, terrorist bombing,
offences against internationally protected persons and financing terrorism,
with provision for extra-territorial jurisdiction in accordance with the
relevant UN Conventions.
Definition of terrorism
* The
Offences Against the State Act 1939 - 1998
The
Offences Against the State Act 1939 – 1998 does not provide for a definition of
terrorism, or terrorist. Indeed, the word “terrorism” is not even used in the
Act. Generally, Irish law does not yet offer a definition of terrorism.
The
offences covered by the Act are defined in Part II, and are offences such as:
-
unlawfully exercising the functions of government
(such as being a member of an unauthorised armed force, or setting up a
tribunal not lawfully established);
-
preventing, obstructing (or attempting to do so), “by
force of arms or violent means or by any form of intimidation” the carrying on
of the government of the State (or any of its branches - whether legislative,
judicial, executive – or its members, or employees), of its functions, powers
or duties;
-
committing acts of violence against a member of a
lawfully established military or police force, “with intent to undermine public
order or the authority of the State”;
-
printing, publishing or sending any paper which is
sent or contributed by or on behalf of an unlawful organisation (as defined in
Part III);
-
forming, organising, promoting, maintaining, or taking
part in, a secret society amongst members of any military or police force, or
attempt to do so. A “secret society” is broadly defined as a body, the members
of which are required by its regulations not to disclose the proceedings or
some part of the proceedings of the body;
-
directing an unlawful organisation.
* The
Criminal Justice (Terrorist Offence) Bill, 2002
This Bill offers the first
definition of terrorism in Irish law, by integrating into domestic law the
definition adopted in the Council Framework Decision of 13 June 2002. Specified
offences become terrorist offences when committed with intent to seriously
intimidate a population, unduly compel a Government or international
organisation to perform or abstain from performing an act, or seriously
destabilise or destroy the fundamental political, constitutional, economic or
social structures of a State or an international organisation. The relevant
offences are listed in Schedule 2 of the Bill, and are offences such as murder,
assault, torture, offences relating to aircraft, explosives, firearms and so
on.
Victims
Irish law does not provide any specific measures directed towards
victims of terrorist offences. However, regarding offences “involving violence
or the threat of violence to a person”, Section 5 of the Criminal Justice Act
1993 stipulates that the court shall take into account, and may receive
evidence or submissions concerning, any effect of the offence on the person in
respect of whom the offence was committed.
Controversies
European Court of Human Rights
- Lawless v. Ireland
Lawless v. Ireland was the first judgment of the European Court of
Human Rights in respect of a petition
brought by a citizen against his own State. The Court ruled that internment was
contrary to the principle of personal liberty as guaranteed by article 5 of the
European Convention. However, the Court considered that Ireland had validly
derogated from these provisions under article 15 of the European Convention,
and that the exceptional measures taken were strictly required by the
exigencies of the situation as ordinary law had proved unable to check the
growing danger that threatened the Republic of Ireland. As a result, no
violation of the European Convention was found in this case.
- Heaney v. Ireland; Quinn v. Ireland.
In these
cases, the European Court of Human Rights held that section 52 of the Offences
Against the State Act (which required the suspect to give an account of his
movements) is incompatible with article 6 of the European Convention, as it
denied the very essence of protection against self-incrimination.
United
Nations Human Rights Committee
- Kavanagh v. Ireland
In this case, the applicant
challenged the continued operation of the Special Criminal Court in the
post-ceasefire context. The Irish Supreme Court had previously rejected this
argument on the basis that a judgement as to the inadequacy of the ordinary
courts to secure the effective administration of justice was essentially a
political one, which was susceptible to judicial review only in exceptional
circumstances. The applicant subsequently took his complaint to the Human
Rights Committee, which considered that Ireland “had failed to demonstrate that
the decision to try the applicant before the Special Criminal Court was based
upon reasonable and objective grounds”. The Human Rights Committee therefore
considered that Ireland had violated the applicant’s right to equality, as
guaranteed by article 26 of the International Covenant.
Conclusion
Irish anti-terrorist
legislation may be criticised as it offers to the executive branch powers of an
exceptional nature, as well as limiting due process, while providing little
safeguard limiting risks of abuse.
The United Kingdom Anti-terrorist
Legislation
William A. Schabas
Professor of human rights law, National University of Ireland, Galway,
Director, Irish Centre for Human Rights
&
Clémentine Olivier
Doctoral candidate, Irish Centre for Human Rights
Background
The historical, legal, as well as political
anti-terrorist issue in United Kingdom is extremely complex. In this paper, we
shall only raise some relevant matters, which will inevitably cause
simplification.
The territory of United
Kingdom (UK) encompasses Great Britain (England, Wales, Scotland), and Northern
Ireland. Three legal systems operate within the UK, all following the common
law tradition, although Scotland has a strong influence of civil law. Laws
passed by Parliament can apply to the different areas uniformly, or may apply
specifically to one or some of them.
The United Kingdom has been
subject to nationalist terrorism during most of the 20th
Century. Attacks were particularly
violent in the 1960s and 1970s. Several kinds of terrorism may be
distinguished. Northern-Irish terrorism appears to be the main nationalist one,
and the history of the conflict in Northern Ireland reaches back to the
military conquest of Ireland by England in 1168. The independent state of the
Republic of Ireland was created in 1922, but six counties known as Northern
Ireland remained attached to UK. The island remains divided between an
independent State in the south and territory under British control in the
north, and this remains a source of considerable tension.
Regarding the issue of
international terrorism, the UK faced threats long before the September 11th
attacks on the United States of America. British interests abroad have also
been threatened.
National
anti-terrorist laws
General
presentation
Given the historical
background in the UK, anti-terrorist laws were first designed to fight against
Northern-Irish terrorism. Most of these laws have been shaped by dramatic
events, as the passing of Acts was usually preceded by terrorist attacks. In
the 1990s, United Kingdom anti-terrorist legislation was pretty confusing for a
non-specialist, with several different laws, some of them overlapping.
Today, the British
anti-terrorist legislation is to a great extent governed by the Terrorism Act
2000 and the Anti-Terrorism, Crime and Security Act 2001. In addition to these
two Acts, some specific laws remain; most of them are based on international
conventions against terrorism. They cover in particular issues such as
extradition and universal jurisdiction. They are concerned with aviation
security, maritime security, taking of hostage, and nuclear material.
The regular renewal of
derogating measures defined by special laws, and the passing in 2000 and 2001
of long-term anti-terrorist Acts, suggests that the originally temporary and
exceptional laws have become permanent ones.
The
Terrorism Act 2000
The Terrorism Act 2000 was
different from the previous ones as it was not drafted in circumstances of
crisis, so it offered a chance to provide an analysis with the benefit of
hindsight. Nevertheless, the 2000 Act faces criticisms both from civil rights
activists and scholars, mainly because it “does not provide for the kind of
structure to ensure the future democratic accountability for the operation of
this type of law”.
The 2000 Act harmonises the
law in Great Britain and Northern Ireland, apart from Part VII of the Act that
defines temporary specific measures applied in Northern Ireland. The other main
themes of the Act cover proscribed organisations (Part II), terrorist property
(Part III), terrorist investigations (Part IV), and counter-terrorism powers
(Part V).
The 2000 Act grants special
powers to police; in particular, Part V of the Act provides for the possibility
of arrest without warrant. In such cases and by contrast with ordinary law, the
arresting officer does not need to base the procedure on any specific offence,
suffice that the constable “reasonably suspects” the person “to be a
terrorist”. This allows police very wide discretion – in particular given the
broad definition of “terrorist” – and risks of abuse create concerns amongst
lawyers and human rights activists.
Furthermore, in contrast
with normally applicable law, the Terrorism Act 2000 allows for a longer period
of detention subsequent to arrest without warrant (initial detention up to 48
hours is allowed, and may be extended for further five days).
Besides the increment of
police powers, the Terrorism Act 2000 allows for delays and limits to the
exercise of the right to access to a lawyer. These limitations cause serious
concerns amongst scholars and human rights lawyers, as they jeopardize minimum
guarantees normally offered to any suspect.
Special measures for Northern Ireland
Despite the Good Friday
Agreement, special measures applicable to Northern Ireland appear in Part VII
of the Terrorism Act 2000 and are subject to annual renewal. Northern Ireland
has been subject to this type of special measures for a long time. In 1973, the
Northern Ireland (Emergency Provisions) Act created a special court in order to
deal with terrorist cases, and modified pre-trial procedure for these crimes.
These special courts are called the “Diplock courts”, from the name of the
Chairman of the Commission that issued the report recommending the creation of
such courts.
The “Diplock courts” still
exist today, and now deal with the offences listed in Schedule 9 of the
Terrorism Act 2000 (such as homicide, explosives, firearms…). One of the key
provisions of the procedure applied in “Diplock courts”, as now defined in Part
VII of the Terrorism Act 2000, is that the Crown Court in Belfast will have
jurisdiction over a scheduled offence, and the trial will be conducted before a
single judge, sitting without a jury. In a judgement of guilt, the judge shall
explain the reasons for the conviction (by contrast with a decision by a jury).
The convicted person may always appeal to the Court of Appeal, and there is no
need for either leave of the Court or Appeal or a certificate of the judge of
the court of trial. Under the procedure applied in “Diplock courts”, the burden
of proof is switched in some cases. For example, the court may assume that the
accused possessed explosives when such items were found on any premise at the
same time as the accused. In order to rebut this presumption, the accused has
to prove, for example, that he did not know of the presence of the explosives
on the premises. The “juryless” system, combined with the lower standard for
the admission of evidence, is considered by non-governmental organisations as
incompatible with the right to a fair trial.
The procedure in Northern
Ireland authorises constables with special powers, in particular to arrest
without warrant any person reasonably suspected to commit, or to have
committed, or to be about to commit an offence. Such phrasing does not appear
to offer sufficient safeguards to limit risks of abuse.
Finally, evidentiary procedure is modified under Part VII of the
Terrorism Act 2000. Evidence that would normally be excluded, such as mere
opinions of senior police officers, may be admitted in court for the purpose of
convicting someone of being a member of a specified organisation. This has been
condemned by lawyers and non-governmental organisations.
The
Anti-Terrorism, Crime and Security Act 2001
The Anti-Terrorism, Crime
and Security Act 2001 is a legislative response to the September 11th
terrorist attacks on the United States of America. It was adopted pursuant to
the request from the United Nations Security Council that all States take
measures to prevent the commission of terrorist attacks.
The Anti-Terrorism, Crime
and Security Act 2001 deals with terrorist property (Parts I and II),
disclosure of information (Part III), immigration and asylum (Part IV, which is
subject to high controversy), issues linked with “race and religion” (Part V),
dangerous substances (Part VI and VII), security of vulnerable facilities (Part
VIII and IX), police powers (Part X), retention and communication data (Part
XI), and bribery and corruption (Part XII).
The Anti-Terrorism, Crime
and Security Act 2001 has been criticised for various reasons, first because it
was passed in emergency, with little time to discuss the content of the law.
The content of the 2001 Act is such a departure from normally applicable legal
standards that the UK deemed it necessary to derogate from the European
Convention on Human Rights.
Indeed, the European Convention
(integrated into British law by the Human Rights Act 1998) sets up minimum
human rights standards that member States must respect. In times of emergency,
under certain conditions and according to a specific procedure, member States
may derogate from some of their obligations under the European Convention. The
United Kingdom formally derogated from the European Convention: on 18th
December 2001, making the appropriate declaration to the Secretariat General of
the Council of Europe. UK government bases the need for derogation on the
existence in the UK of a peculiar threat from persons suspected of involvement
in international terrorism, in particular from foreign nationals present on the
British territory, who are suspected of being involved in international
terrorist activities. The United Kingdom is the only state in Europe that has
so far derogated from the European Convention, and the reasons why the public
emergency is any greater in UK than elsewhere in Europe are not quite clear. In
January, 2002, the Parliamentary Assembly of the Council of Europe recalled
that in their fight against terrorism “member states should not provide for any
derogation to the European Convention on Human Rights”.
The relevant part of the
2001 Act (namely Part IV) that – without special derogation – would have been
unlawful under normally applicable law, concerns the extended power to detain
foreign nationals. In such cases detention that lasts more than a short period
of time may be incompatible with article 5.1(f) of the European Convention.
Part IV allows detention without charge or trial of non-nationals, for
unspecified and potentially unlimited duration, if the person is a suspected
international terrorist and cannot be reported or removed from the UK.
Of course, such decision to
derogate may be challenged under the European Convention itself, through an
application to the European Court of Human Rights. In the past, derogations by
the United Kingdom with respect to legislation intended to address terrorism in
Northern Ireland have been successfully challenged before the
European Court of Human Rights.
So far, the lawfulness of
the Anti-Terrorism, Crime and Security Act 2001 has been challenged in the
domestic system by the Special Immigration Appeals Commission (SIAC). The SIAC
considered Part IV of the 2001 Act discriminatory in effect, as these measures
did not apply equally to British nationals suspected of terrorist links,
thereby violating article 14 of the European Convention, on the prohibition of
discrimination. This decision was overruled by the Court of Appeal that
considered that British nationals (who cannot be removed from the country) are
not in an analogous situation to foreign nationals. A different of treatment
was considered allowable because of the difference of the situation.
Furthermore, the Court insisted that it was well established in international
law that States may distinguish between nationals and non-national, especially
in times of emergency.
Definition of terrorism
The Terrorism Act 2000 brought
into UK law a new definition of terrorism.
According to Section 1,
terrorism implies three cumulative conditions. First, the act must be one of
those listed. Secondly, the act must be designed to influence the government or
to intimidate the public or a section or the public. Thirdly, it must be made
for the purpose of advancing a political, religious or ideological cause, which
are broad criteria.
Besides, any of the listed
actions that involves the use of firearms or explosives is qualified as terrorism,
regardless of whether the act was be designed to influence the government or to
intimidate the public or a section or the public.
According to Section 40(1),
“terrorist” means a person who (a) has committed an offence under one of the
relevant section of the Act, or (b) is or has been concerned in the commission,
preparation or instigation of acts of terrorism, as defined in section 1 of the
Act. Hence, the definition covers not only commission, but also preparation and
instigation of the crime.
Furthermore, according to
Section 21(2) of the Anti-Terrorism Crime and Security Act 2001, a terrorist is
also someone who is a member of or belongs to an international terrorist group,
or who has links with an international terrorist group.
Controversies
The history of the conflict
in Northern Ireland is marked with tragic events, the responsibility for some
of which still have not been officially cleared up.
Besides the criticisms of
the Terrorism Act 2000 and the Anti-Terrorism, Crime and Security Act 2001, raised
by scholars and human rights lawyers, United Kingdom has been subject to
numerous of complains under the European Convention mechanism.
The European Court of Human
Rights considered in several instances that United Kingdom’s anti-terrorist
laws were in breach of its obligations under the European Convention.
In what is commonly called
the “Northern Ireland case”, Ireland took a complaint against the United Kingdom, pursuant to article 24 of the
European Convention on Human Rights. One of the alleged violations concerned
the institution detention without charge and torture and ill-treatment of those
suspected of terrorist activities. In this case, the system of administrative
detention was not considered unlawful, while the physical violence against prisoners
was qualified as inhuman and degrading treatment.
In another case, regarding
special powers of detention, in 1988 the European Court of Human Rights held
that article 5(3) had been breached because of the lack of judicial supervision
in the decision to detain the applicants. Following this decision, United
Kingdom could have modified its domestic law, but it decided to derogate
formally from the relevant article of the European Convention in order to be
able to continue to apply the national anti-terrorist law. This derogation was
challenged, but it was considered valid by the European Court. It is worth
underlining that the current Terrorist Act 2000 now provides for judicial
supervision in the decision to detain alleged terrorists.
Regarding limits to access
to a lawyer, the presence of police during a consultation between the detainee
and his solicitor has recently been qualified as a breach to article 6 of the
European Convention guaranteeing the right to a fair trial.
The European Court of Human
Rights also found that the UK violated the right to life in the McCann case. In this case, three Irish
Republican Army (IRA) members were shot dead in Gibraltar by members of the
British security forces. The Court, after an extensive and meticulous analysis
of the circumstances of the shooting, considered that UK had violated article 2
of the European Convention.
Conclusion
UK anti-terrorist
legislation is one of the most severe in western democracies.
The United
Nations Human Rights Committee, in its 2001 observations regarding the UK
report, stressed its concerns about UK anti-terrorist legislation. In
particular, it emphasised its concerns about the existence of different
procedure in Northern Ireland and in Great Britain (§18) and the possible extended
period of detention without access to lawyer (§19).
THE STATE OF ANTI-TERRORIST LEGISLATION IN
THE
OTHER
MEMBER
STATES OF THE EUROPEAN UNION
William A. Schabas
Professor of human rights law, National University of Ireland, Galway
Director, Irish Centre for Human Rights
&
Clémentine
Olivier
Doctoral candidate, National University of Ireland, Galway
Irish Centre for Human Rights
For an
analysis and critical appreciation of the state of anti-terrorist legislation
inside the European Union, please refer to the first thematic report of the EU
Network of Independent Experts in Fundamental Rights, entitled "The
balance between freedom and security in the response by the European Union and
its Member States to terrorist threats" (March 31, 2003) available on
http://www.europa.eu.int/comm/justice_home/news/intro/news_intro_en.htm
(Thematic comment drafted at the request of the European Commission, Unit A5)
which makes interesting reading.
We would
like to thank our colleagues who have contributed precious help to our
research, particularly Bibi van Ginkel from Utrecht University, Christoffer
Badse and Birgitte Kofod Olsen from the Danish Institute for Human Rights,
Mikaela Heikkilä and Professor Martin Scheinin from the Finnish Institute for
Human Rights. Any mistake or omission remains the responsibility of the
authors.
The
authors are grateful to Megan Fairlie for her assistance.
For
further details, see Austria's reports to the Counter-Terrorism Committee of
the United Nations' Security Council created pursuant to Resolution 1373 (2001)
[S/RES/1373 (2001)] (hereafter referred to as the "Counter-Terrorism
Committee") S/2001/1242, December 26, 2001, S/2002/969, August 29,
2002 and S/2003/276, March 6, 2003. See also the Austrian Penal Code, in German,
available on: http://www.sbg.ac.at/ssk/docs/stgb/stgb_index.htm
Traditionally, Austrian criminal law did not define terrorism as a specific offense. Terrorist acts were punished as offenses under the general law (for example murder, endangering life by means of explosives, aircraft hijacking, etc.). Terrorist offenses could be prosecuted in various ways without taking the motive of the offender into account.
Under
the Security Police (Criminalization of Threats to Public Order) Act, terrorist
offenses could be prosecuted as a conspiracy between at least three people to
commit criminal offenses (criminal organization).
Under
the Penal Code, an agreement with at least one other person to commit a
criminal act, such as a murder, kidnapping, aircraft hijacking or endangering
life by means of explosives, is itself a criminal offense without proof of an
act in furtherance of the offense. Participation in a criminal organization is
also considered an offense.
With regard to the
financial aspects of terrorism, the funding of armed groups was punishable
under Article 279 of the Penal Code. Further, the deliberate funding of a
terrorist act qualifies as aiding and abetting (or participation) in the offense
itself (such as murder, deliberately endangering life through the use of
explosives, etc.). Similarly, the donation or collection of money for the
funding of the activities of a criminal organization in general equates to
participation in the criminal organization.
As
far as arms trafficking and forming armed groups are concerned, there were
various ways to prosecute terrorist offenses. The recruitment of members for
armed groups constitutes an offense. It was also possible to use the Arms Act
as a means to prevent the supply of arms to terrorists. Supplying arms to an
armed group is prohibited under the Penal Code. Purchasing, possessing or
transporting arms or munitions with the intention of equipping a considerable
number of persons for combat purposes also constitutes an offense.
The
War Material Act also provided a means of prosecuting some forms of terrorist
crimes.
Following
the terrorist attacks of September 11, 2001
After
the terrorist attacks of September 11, a special task force was set up at the
Federal Ministry of the Interior which, together with the squad combating
terrorism (EBT) and the organized crime squad (EDOK), was given a mandate to
take whatever measures were deemed necessary on a country-wide scale.
Following the European Union
Council Framework Decision of June 13, 2002 on combating terrorism, Articles
278b to 278d were added to the Penal Code, making terrorism a distinct criminal
offense for the first time, and Article 64 of the code was amended, giving the
Austrian courts extra-territorial jurisdiction to try similar offenses. Article
278b defines the notion of "terrorist organization" in accordance
with the Framework Decision and imposes a sentence of up to ten years'
imprisonment for those guilty of belonging to such organizations. Article 278c
of the Penal Code increases the severity of the penalties that may be incurred
for certain offenses if they are committed by terrorist organizations. Article
278d outlaws the funding of terrorism and support for terrorist activities. However,
the law also provides that an act cannot be defined as terrorist if its purpose
is to establish or restore democracy and the rule of law, or to protect human
rights.
The
Military Powers Act was also amended to allow military intelligence services to
obtain personal data about customers, free of charge, from telecommunications
service providers.
For
further details, see the following report from Belgium to the Counter-Terrorism
Committee: S/2001/1266. Refer also to the Belgian Penal Code, available on:
http://www.just.fgov.be/index_fr.htm
The situation prior to the terrorist attacks of
September 11, 2001
Before
the Framework Decision came into force, Belgium did not, strictly speaking,
recognize "terrorist offenses". Therefore, the fight against
terrorist activities hinged primarily on the Belgian Penal Code, which punishes
both the offenses which precede a terrorist act and those offenses which
constitute the terrorist acts. Also, offenses committed to pave the way for a
terrorist act are punishable if they fall within the definition of uttering
forged documents, illegal collection of funds, etc. There is also a Criminal
Organizations Act of January 10, 1999.
If
a terrorist organization satisfies the criteria for classification as a
"criminal organization", as defined in Article 324 bis of the Penal Code, membership in
such an organization is an offense under the criminal law. There was no
specific legislation in Belgium concerning the recruitment of the members of
terrorist groups until the Framework Decision came into force.
The
Money Laundering Act of January 11, 1993 could be used to address the financial
aspects of the fight against terrorism; it provides that a source of money or
assets was illicit if the money or assets were the proceeds of a
terrorist-related offense.
Belgian
law also has various means of combating the supply of arms to terrorists.
Faced
with the terrorist threat, Belgian legislation has evolved towards a separation
between standard criminal proceedings under the general law and special
proceedings for particularly serious offenses, such as terrorism. Thus, the Act
of June 21, 2001, which came into force on May 21, 2002, creates a Federal
Prosecution Service with jurisdiction for the entire country, run by a Federal Crown
Prosecutor, with a maximum of 18 federal magistrates. A public prosecution may
be brought by the Federal Prosecution Service where its involvement may
contribute to the efficient administration of justice for the prosecution of
certain offences distinguished either by type of offense or by geographical
scope. These include violent offenses against persons or property, committed
for ideological or political motives, with the intent to achieve an objective
through terror, intimidation or threats and offenses involving several
jurisdictions or which have an international dimension, such as offenses by
organized crime and offenses against the legislation outlawing criminal
conspiracies and organizations.
Following
the terrorist attacks of September 11, 2001
On
March 14, 2003, the Belgian government introduced draft legislation on
terrorist offenses before the House of Representatives. The Bill calls for
reforms of the Belgian Penal Code to bring it into compliance with the
Framework Decision. It defines so-called "terrorist offenses" and the
notion of "terrorist group". It also introduces severe penalties and
grants the Belgian courts extra-territorial jurisdiction to prosecute suspected
perpetrators of acts of terrorism.
On
October 9, 2002, draft legislation was brought before the House of
Representatives amending Articles 42 and 44 of the State Authorities (Security
and Intelligence Services) Act of November 30, 1998 and Article 259 bis of
the Penal Code. This legislation was passed without amendment by the House in a
plenary session on December 18, 2002 and will be followed by a review in the
Senate. Article 259 bis was incorporated into the Penal Code in 1994.
Under this provision, it is an offense for any public servant to intrude on
individual privacy. Such intrusions include listening to, or recording, private
communications, to which he is not a party, without the consent of all
those taking part in such communications. In 1998, an exception to this rule
was introduced in favor of the Armed Forces' General Intelligence and Security
Service.
The
recent bill for the revision of Article 259 bis extends this exception to
include all forms of communication generated abroad, and is no longer limited
to military purposes.
An
Act concerning specific fact-finding and other investigative methods was
promulgated on January 6, 2003. This Act provides a legislative framework for
procedures previously governed only by Ministerial Circulars. It concerns the
methods used by police services in police or judicial investigations, methods
borrowed from the intelligence services, including observation, infiltration,
the use of informants, mail interception, direct telephone tapping, the
collection of information concerning bank accounts and bank transactions.
To
prevent the funding of terrorism, Belgium adopted a Royal Decree on May 2, 2002
on specific restrictive measures directed
against certain persons and entities with a view of combating terrorism.
An Act extending rights of seizure and confiscation in criminal investigations
was also recently promulgated.
For
further details, see the following reports from Denmark to the
Counter-Terrorism Committee: S/2001/1303, January 8, 2002 ; S/2002/789,
July 19, 2002 ; S/2003/274, March 6, 2003. See also the Danish government's
legal database, available on: http://www.retsinfo.dk/ (in Danish).
The
situation prior to the terrorist attacks of September 11, 2001
Prior to the terrorist
attacks of September 11, 2001, the Danish Penal Code did not contain any
provisions relating specifically to terrorism. Nevertheless, certain terrorist
acts would fall within the purview of a number of its provisions.
Chapter 12 of the Penal
Code relates to offenses against the independence and security of the State and
Chapter 13 to offenses against the supreme authorities of the State.
For
example, the most serious offenses, such as homicide and aircraft hijacking,
were punishable by sentences of up to life imprisonment. Funding terrorism also
incurred penalties, provided the funding was aimed at financing a specific
criminal act. Funding a terrorist organization that intended, through the use
of force, to exercise an influence over the public affairs of the country or to
disrupt Danish public order was also an offense. In addition, supplying arms to
terrorists was punishable as participation in terrorist acts that had been
committed or planned, or as an offense against the Arms and Explosives Act.
Following
the terrorist attacks of September 11, 2001
After the terrorist attacks
of September 11, 2001, the Danish government passed a series of anti-terrorist
measures, amending previous legislation concerning the scope of the Justice,
Interior and Finance ministerial portfolios.
The Anti-Terrorism Act was
passed by Parliament on May 31, 2002.
The Act includes a new,
separate provision for acts of terrorism which, unlike Section 114 of the
Danish Penal Code, is not restricted to terrorist organizations established in
Denmark, or in any way connected with Denmark or Danish interests. Also, the
new provisions of the Penal Code on terrorism and its funding are not
restricted to acts of terrorism against the Danish State and authorities. On
the contrary, any act against a foreign State, authority and/or citizen may
also be an offense.
New offenses and increasing
penalties
The new Act also provides a
definition of terrorism, incorporated into the Penal Code, based on the
definition contained in the Framework Decision.
Penalties for some offenses
may now be more severe if the relevant offense is related to terrorist
activities. For example, in the case of a terrorist offense, the maximum
sentence provided for under Section 192 a) of the Penal Code for serious
violations of the Arms and Explosives Act (våbenloven)
is increased from four to six years' imprisonment.
In
addition, the new legislative arsenal contains two new sections that make the
funding of terrorism an even more serious offense and enlarge the scope of that
offense.
Under this
new legislation, the transportation of arms for terrorist purposes will be
punished under the anti-terrorist provisions.
With regard to the seizure
of assets used for terrorist activities, Section 77 a) of the Penal Code widens
the scope of proceedings to confiscate money and other assets if it is
suspected that they will be used to commit crimes. At the same time, Sections
802 and 803 of the Administration of Justice Act (retsplejeloven) have been amended to
allow money and other assets to be seized and confiscated.
New procedures
Section 799 of the
Administration of Justice Act has been amended to allow new procedures to be
implemented. Firstly, secret searches of premises are now lawful in the case of
arson, bomb explosions, and the theft or release of toxic substances into water
or food supplies. Secondly, a court may now authorize the police to carry out
repeated searches, based on a single warrant, meaning a number of successive
searches, without notice, for a period of up to four weeks.
For the purpose of police
investigations, and as an exception to the principle that communications are
confidential, it is now provided that telecommunications companies and Internet
access suppliers are required to record and store certain types of data for a
period of one year. Only the companies have an obligation to record and store the
relevant data. There is no provision giving the
police wider access to such data. The Minister of Justice may also make
exceptions to the rule that communications are confidential by laying down
rules defining the assistance that telecommunications companies are required to
give the police.
In the case of very serious
offenses, the police may now obtain a warrant from the court authorizing them
to seize data from a computer system that is not accessible to the public, for
example, using software other than at the location where the computer system
(i.e. computer hardware) is being used.
Turning to the matter of
international cooperation, the Extradition Act (udleveringsloven) has been amended to allow a Danish national to be
extradited for trial abroad if certain conditions are satisfied. This allows a
case to be investigated, in preparation for trial, at the place where the
offense was committed.
The Danish
Foreigners Act has also been amended to increase cooperation between the
immigration services and the intelligence services in matters concerning
foreigners. These authorities have developed a system for the mutual exchange
of information, without requiring the consent of the persons concerned.
The right to deport
foreigners has also been extended and is justified if the security of the
State, society and the population so requires.
Danish law does not contain
any provisions relating exclusively to the victims of terrorist offenses.
However, the general legislation relating to all victims of acts of violence
also applies to the victims of terrorism.
For
further details, see the following reports from Finland to the
Counter-Terrorism Committee: S/2001/1251, December 28, 2001; S/2002/879, August
1, 2002; S/2003/279, March 4, 2003. See also the Finnish legal database,
available on: http://finlex.edita.fi/stp.html (in Finnish).
The
situation prior to the terrorist attacks of September 11, 2001
Historically, Finland has
had little need to confront the problem of terrorism. At the time when the
country was part of the Russian Empire (1809 - 1917), some violent incidents
marked the resistance against attempted “Russianization” (1899 - 1914). A
political assassination took place following independence and, from 1929 to
1932, left-wing figures were kidnapped by the Lapua Movement, an extreme
right-wing paramilitary organization.
In recent
years, however, it has not been thought that terrorism presents a major threat
to Finland. Until 2003, the country had no specific anti-terrorist legislation.
Although Finland ratified most of the international agreements against
terrorism before the terrorist attacks of September 11, 2001, those treaties
did not result in any major amendments to its domestic law. For example, there
was still no legal definition of "terrorism".
Prior to the amendment of
the Finnish Penal Code in 2003, existing legislation did provide a basis for
prosecuting terrorist offenses. It was illegal to recruit persons and supply
arms in preparation for committing high treason. The recruitment of members of
a terrorist group was outlawed under the provisions on incitement to commit a
crime. An offense of endangering the life of another was also punishable by up
to 10 years’ imprisonment. Chapter 34 of the Penal Code included a number of
sections applicable to terrorist offenses, including damaging property and
causing personal injury, attacks against means of transport or perpetrated
using nuclear devices, preparing offenses involving a risk to the public, false
alerts and aircraft hijacking. There was also a Money Laundering Act which
covered the funding of terrorist activities.
As far as penalties are
concerned, the commission of offenses by any person acting as a member of a
group organized for the purpose of committing serious crimes is in itself a
ground for increasing the sentence imposed, pursuant to Chapter 6, Section 2 of
the Penal Code.
Finnish law did not include
any specific measures applicable to the victims of terrorist crimes. However,
the general law in Finland does afford a special place for all victims of
criminal offenses, including acts of terrorism. For example, the country’s
criminal procedure provides a place for victims at court hearings and gives
them the right, under certain circumstances, to receive compensation from the
State.
Following
the terrorist attacks of September 11, 2001
In 2002, Finland adopted
new criminal legislation to implement the terms of the Framework Decision. As a
result, Chapter 34a of the Penal Code came into force on February 1, 2003.
New provisions are included in the
Code that relate to terrorist offenses and, accordingly, amend the law on
enforcement measures.
The
main amendments to the Penal Code are as follows:
-
incorporation of a new chapter (34 a) relating to
terrorist crimes. This chapter lays down rules governing sentences for
terrorist offenses. Such offenses include preparing terrorist acts, directing a
terrorist group, supporting a terrorist group and funding terrorism;
-
incorporation of a new provision on the penalties for
using chemical weapons;
-
the provisions on money laundering in Chapter 32 of
the Penal Code have also been amended. Previously, money laundering was treated
in the same way as the handling of stolen goods. It now has its own separate
section.
As far as
the definition of terrorist offenses is concerned, the new Chapter 34a, Section
1 of the Penal Code covers crimes under the general law (murder, etc.)
committed with "terrorist intent". Section 2 makes it an offense to
plan most of these crimes.
The
notions "terrorist intent" and "terrorist group" are
defined in Chapter 34a, Section 6, based on the wording of the Framework
Decision. "Terrorist group" means a grouping of at least three
persons, operating over a period of time, possessing an internal structure in
which its members work together with a view to committing one of the crimes
defined in Section 1. Section 3 defines the crime of "directing a
terrorist group" and Section 4 makes it an offense to participate in the
activities of a criminal organization.
Unlike the Framework Decision,
Sections 3 and 4 of the new Finnish legislation only apply once the group in
question has committed at least one of the offenses listed in Chapter 34a. In
other words, a group cannot be defined as a terrorist group within the meaning
of Sections 3 and 4 unless it has committed at least one of the listed
offenses. Initially, the draft legislation did not make the crime of supporting
a terrorist group subject to the actual commission of the main offense, or
planning or attempting to commit that offense. This amendment was made by
Parliament, which seems to have based its decision on a ruling issued by the
Constitutional Law Commission, which is responsible for verifying the
constitutionality of Finnish legislation.
Under
Chapter 34 of the Penal Code, it is also an offense to finance terrorism. The
provisions concerning the criminal liability of corporate entities have also
been extended to encompass certain terrorist offenses.
International
terrorism is now also a crime pursuant to an Act that came into force in July
2002.
The
Money Laundering Detection and Prevention Act has been amended by a
parliamentary bill passed in January 2003. The anti-money laundering
legislation has now been extended to include the funding of terrorism.
Previously, a number of professions were under a duty to report transactions
that they suspected were for money laundering purposes. This duty no longer
relates only to money laundering transactions, it has been extended to include
transactions which there is reason to believe may contribute to terrorist
funding. If it is suspected that a transaction is intended to fund terrorism,
it is not necessary for the funds to be the proceeds of criminal activities.
The new Act also extends the list of persons required to report transactions
that are suspected to be for the purpose of money laundering.
For further details, see
the following reports from Greece to the Counter-Terrorism Committee (available
in English only): S/2002/43, January 9, 2002; S/2002/857, November 6, 2002.
The situation prior to the terrorist attacks of
September 11, 2001
Act 2928 of June 27, 2001
“on the protection of citizens against criminal acts committed by criminal
organizations” introduced a number of amendments to the Greek Penal Code and
Code of Criminal Procedure.
The
Greek financial intelligence services were responsible for investigating cases
having to do with the funding of terrorist organizations, in cooperation with
the Attorney General's Office. Non-banking institutions (such as mutual societies,
foreign exchange offices and insurance companies) had a duty to report any
suspicious transaction to the financial intelligence services.
Since Act
2928/1 came into effect, the Greek Penal Code and Code of Criminal Procedure
apply to offenses committed by criminal organizations, and this category
includes terrorist organizations. Article 187(1) of the Penal Code defines the
term criminal organization and provides for the punishment of individuals who
set up or participate in an active and structured group of three persons or
more, intending to commit other crimes such as forgery, burglary, extortion,
violation of the legislation on explosives, etc. The manufacture, supply or
possession of arms, explosives and chemicals, and radioactive materials that
are hazardous to health are aggravating circumstances as regards offenses
connected with a criminal organization.
Following
the terrorist attacks of September 11, 2001
Two
working groups were established to study possible amendments to domestic law
following the adoption of Resolution 1373 of the United Nations Security
Council. Under the auspices of the Ministry of Justice, the first working group
is responsible for drafting legislation which will make it a criminal offense
to fund terrorist activities and defining the necessary administrative and
judicial enforcement measures (such as asset freezing). Under the auspices of
the Ministry of the Economy and Finance, the second working group is drafting
legislation to incorporate the recommendations of the Financial Action Task
Force on Money Laundering into domestic law.
Since 2002, Greek law
limits the freedom of a person suspected of terrorist acts to choose his
lawyer.
For further details, see
the following reports from Luxembourg to the Counter-Terrorism Committee:
S/2002/6, January 2, 2002; S/2002/1018, September 13, 2002. See also the
Luxembourg legal database, available on: http://www.legilux.lu
The situation prior to the terrorist attacks of
September 11, 2001
Under
Luxembourg law, there was previously no legislation specifically outlawing
terrorist acts and their funding. However, in general, these acts fell within
other legal definitions of criminal offenses. Notably, forming a group with the
aim of damaging property or causing personal injury already was a criminal
offense. Anyone aiding and abetting such acts could be punished either as a
co-perpetrator or as an accomplice to such offenses.
For example, Article
506-1 of the Penal Code could be applied to some acts of terrorism; under this
provision it is a criminal offense to launder money earned by, or in
association with, a criminal conspiracy or criminal organization from any
felony or misdemeanor or to launder money earned as a result of committing
offenses under the laws on arms and munitions.
The following are also
punishable under the Penal Code:
-
offenses against the external security of the State;
-
offenses
against the internal security of the State;
-
intentional
assault and wounding;
-
unintentional
assault and wounding;
-
hostage
taking;
-
forging
private documents, forging public documents and uttering forged documents;
-
destroying
the personal property of another;
-
offenses
against the laws on arms and munitions;
-
forming
criminal conspiracies or criminal organizations or participating in their
activities.
Accomplices to any
such offense may be punished under Article 67 of the Penal Code and the funding
of such criminal activities could be deemed to be complicity or aiding
and abetting.
The legal arsenal available in the
fight against the laundering of the proceeds of crime is applicable to acts
perpetrated by criminal organizations formed with the objective of damaging
property of causing personal injury.
The
money laundering legislation may also be applied to offenses under the arms and
munitions legislation. Accordingly, any financial transactions undertaken to
fund the supply of weapons to terrorist organizations (such as the purchase,
possession or sale of arms) are criminal offenses under Luxembourg law.
Following
the terrorist attacks of September 11, 2001
Government bill No. 4954
addresses the suppression of terrorism and its financing, ratifying the
International Convention for the Suppression of the Financing of Terrorism of
January 10, 2000, was introduced before parliament on May 16, 2002.
On April 12, 2002, the
Luxembourg Council of Ministers adopted the government bill for the suppression
of terrorism and its financing, ratifying the International Convention for the
Suppression of the Financing of Terrorism. The government bill defines an act of terrorism as follows: an act that
may seriously damage a country or organization, committed intentionally with
the aim of intimidating a population, compelling government authorities to
perform certain acts or destabilizing or destroying the structures of a
country.
The government bill targets the
following four terrorist acts:
-
the act itself: those guilty may be
sentenced to between fifteen and twenty years' imprisonment. If a terrorist act
causes death, those guilty may be sentenced to life imprisonment;
-
terrorist groups: all members of a
terrorist group fall within the scope of the government bill if acts of
terrorism are committed by that group;
-
funding terrorism;
-
the definition of money laundering has
been widened: laundering the money of terrorist groups will become a terrorist
act in itself.
For
further details, see the following reports from the Netherlands to the
Counter-Terrorism Committee: S/2001/1264, December 27, 2001 and S/2002/1136,
October 7, 2002. See also the Dutch Penal Code, available on
http://www.win.tue.nl/~aeb/jura/Strafrecht/Wetboek_van_Strafrecht/ (in Dutch).
See also Rewin Muller, "The Netherlands: Structuring the Management of
Terrorist Incidents", in Confronting Terrorism, M. van Leeuwen (Ed.),
Kluwer Law International, Netherlands, 2003 (p. 147 – 164).
The situation prior to the terrorist attacks of September 11, 2001
During the 1970s, when the
Netherlands experienced several cases of hostage taking, the Dutch government
defined terrorism as a violation of the legal order. Therefore, responsibility
for combating terrorism lay, in the first instance, with the judicial
authorities. Until recently, there was no specific legislation applying
exclusively to terrorist offenses. Anti-terrorist procedures were primarily
based on Ministerial Circulars. The leading circular dates back to 1972. Other
circulars were issued subsequently and, in 1981, a National Anti-Terrorist
Prosecutor was appointed with responsibility for coordinating investigations.
In 1990-91, after the first Gulf War, the government defined a ten-year action
plan against terrorist threats, authorizing the Ministers in the Gulf Crisis
Cabinet to coordinate the measures that needed to be taken under the
circumstances. The terrorist threat was jointly assessed by three authorities:
the Director General for Security and Public Order at the Ministry of the
Interior, the Director General of the Police and Foreigners at the Ministry of
Justice and the Director of the National Security Service. Even after the
terrorist attacks against the United States on September 11, 2001, this joint
assessment procedure is still in operation. It bases its analysis on the
National Guidelines for Crisis Decision-making.
Terrorist activities were
punishable under Dutch criminal law pursuant to various articles of the Penal
Code.
The funding of terrorist activities
could potentially be prosecuted pursuant to three distinct criminal charges.
Firstly,
the offense could form the basis for a charge of preparing to commit a criminal
act. Proof of the same did not require that the terrorist act actually be
committed. The funding of acts of terrorism, or otherwise supporting such acts,
falls within the definition of preparing to commit a criminal act. Secondly, this
offense could also be prosecuted under the heading of funding a criminal
conspiracy. Thirdly, the funding of terrorism, or supporting terrorist acts,
could be prosecuted under the heading of participating in an offense, such as
an agreement to incite the commission of a terrorist offense (whether or not
the offense was actually committed). Under this heading, anyone who
intentionally made it possible to commit an offense by making a donation,
accepting a commitment or providing resources for this purpose, could be
subject to prosecution.
Recruitment
into a terrorist group could be prosecuted in several ways under Dutch law.
Such activity qualifies as an offense under the rules against incitement to
commit a criminal offense or violent act against the government authorities.
Recruitment could also be prosecuted under the heading of incitement or
attempted incitement to commit an offense.
Illegal trading in arms is an
offense under the Arms and Munitions Act. An application for a license to carry
firearms will be denied if the applicant is considered to be unfit to possess
firearms, if he will put the firearms to improper use or for any other pressing
reason in the public interest that justifies denying the application.
The
taking of hostages is penalized under Dutch law pursuant to Article 282 of the
Penal Code which incorporates, into domestic law, the provisions of the United
Nations International Convention against the Taking of Hostages of 1979.
Participating
in a criminal conspiracy is also illegal under Dutch law. The charge covers
anyone in the Netherlands who participates in an organization whose aim is to
commit criminal offenses abroad.
Following
the terrorist attacks of September 11, 2001
In
the aftermath of the events of September 11, the Dutch parliament received an
action plan setting out 45 new measures to combat terrorism. These new measures
are aimed at toughening anti-terrorist legislation, improving cooperation
between the police and the judicial authorities, implementing suitable
infrastructures to provide information to the agencies responsible for national
security and strengthening oversight and control mechanisms in the financial
sector.
To
give effect to the Framework Decision, a Terrorist Crimes Bill was introduced
before parliament on June 28, 2002. This Bill amends the Penal Code to include
a new provision outlawing membership or participation in a terrorist
organization, creating a separate offense punishable by more severe penalties
than those for participating in a criminal conspiracy. Providing financial
backing for a terrorist organization is considered to be a form of
participation in its activities. The maximum sentence for a crime has been
increased if the offense is committed as part of terrorist activities. The
maximum sentence for serious crimes has been increased by 50 % (up to the
generally applicable maximum of life imprisonment, which in practice means 20
years at the most), if such serious crimes are
committed in the pursuit of terrorist objectives.
The
amendment of Article 205 of the Dutch Penal Code is currently under
consideration. This amendment would make it a criminal offense to belong to
Islamic or Jihad armed forces. A list of prohibited terrorist groups would be
drawn up.
A
new Act came into force in June 2002, known as the Intelligence and Security
Services Act, which relates to the uncovering of information on terrorist
activities and their funding. This Act allows the National Security Service
(BVD) to obtain information about private individuals from those holding
sources of personal data. This information is to be supplied voluntarily by the
organizations concerned.
The
type of data in question includes information about individuals gathered by
various bodies, such as the Immigration and Naturalization Service, municipal
population and demographic services, banks and airlines.
For
further details, see the following reports by Portugal to the Counter-Terrorism
Committee: S/2002/120, January 25, 2002; S/2002/1190, October 24, 2002. See the
Portuguese Penal Code, available on:
http://www.cea.ucp.pt/lei/penal/penalind.htm
The situation prior to the terrorist attacks of
September 11, 2001
The
Portuguese Penal Code did not, as such, contain a definition of terrorism as a
criminal offense. Having said this, Articles 300, 301 and 299 (2) of the Penal
Code, taken together, covered a large range of acts and activities of all types
(some not even criminal) if such acts or activities had criminal objectives,
particularly terrorist motives.
The
Portuguese Penal Code, however, contains a definition of the notion of
"terrorist group or organization". This includes any group of two or
more persons, acting in concert, with a specific motive, i.e. of (1)
endangering national integrity or independence; (2) preventing, impeding or
disrupting the functioning of public institutions provided for under the
Constitution; (3) compelling government authorities to perform or abstain from
performing an act or to tolerate a situation; or (4) intimidating persons,
groups of persons or the population in general into committing criminal acts. A
terrorist offense is also committed where an individual strives to achieve one
of these objectives, even outside of any group or organization, where
particular crimes are committed. These crimes include:
–
attacks on the life or physical integrity of a person
or a violation of his liberty;
–
breaches of the security of transport or
communications systems;
–
deliberately exposing the population to danger through
fire, the release of radioactive or toxic substances, or suffocating gases, by
spreading illnesses, infestations, harmful plants or animals …;
–
sabotage;
–
acts involving the use of nuclear materials, firearms,
explosives, explosive or incendiary devices, booby-trapped parcels or letters.
The
Portuguese Penal Code also punishes acts connected with the funding of
terrorism, firstly through the prohibition of aiding or abetting terrorist
groups regardless of the means of support provided, and, secondly, through the
prohibition of the formation of terrorist groups.
The
offense of disrupting public order and peace could also be used as a means of
outlawing recruitment of terrorist group members and the supply of arms,
independently of any other offenses committed by the group or organization.
Belonging
to a terrorist group was could be punished separately under the Penal Code by a
sentence of ten to fifteen years' imprisonment.
In
addition, the legislation on carrying arms makes it an offense to endanger the
physical integrity of a person or persons through the use or possession of
arms, explosives, pyrotechnic substances or devices at civic, political
religious, cultural, artistic or sporting events or demonstrations.
Following
the terrorist attacks of September 11, 2001
Under the new legislation,
it is an offense to threaten to use terrorism. An offense is committed if such
a threat spreads agitation or anxiety in the population, regardless of whether
the threat is credible as an objective matter.
Portuguese legislation is
principally aimed at preventing the laundering of the proceeds of illegal acts.
In 2002, legislation was introduced to improve the legal mechanisms available
to fight money laundering and, in a wider sense, the funding of terrorism. The
current legislation contains provisions aimed at combating related phenomena,
such as the funding of terrorism.
For further details, see the following reports
from Sweden to the Counter-Terrorism Committee: No. S/2001/1233 of December 24,
2001 and No. S/2002/691 of June 20, 2002. See also the Swedish Penal Code,
available on: http://wings.buffalo.edu/law/bclc/sweden.pdf
The situation prior to the terrorist attacks
of September 11, 2001