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

 

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ABSTRACT

 

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.

 

 

TABLE OF CONTENTS

 

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

 

è European 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

 

Austria

Belgium

Denmark

Finland

Greece

Luxembourg

Netherlands

Portugal

Sweden

 

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 ?

 

 

 

 

PREFACE

 

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.

 

 

FOREWORD

 

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.

 

 

European Cooperation

 

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.

 

Section 1

Condition of the national criminal legislation of the European Union Member States

 

 

LEGISLATION IN FRANCE

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.

 

 

Austria

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

 

The situation prior to the terrorist attacks of September 11, 2001

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.

 

 

Belgium

 

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.

 

 

Denmark

 

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.

 

 

Finland

 

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.

 

 

Greece

 

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.

 

 

Luxembourg

 

 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.

 

 

The Netherlands

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.

 

 

Portugal

 

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.

 

 

Sweden

 

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

 

Swedish criminal law did not define specific offenses for acts of terrorism. The perpetrators of terrorist acts were tried according to the general provisions of the Penal Code. Punishable terrorist acts include murder, kidnapping, arson, causing extensive destruction, endangering the lives of others, sabotage, hijacking, sabotage of maritime or air traffic, airport sabotage and releasing lethal or contagious substances.

The funding of terrorism was punishable pursuant to legislation criminalizing preparation to commit an offense. The funding of terrorism was also punishable according to the principle whereby anyone who through his advice or acts has contributed to a crime (e.g. by financing) shares the guilt of the perpetrator of the crime is guilty.

Further, a number of offenses could be used to punish terrorist acts. For example, anyone recruiting individuals for the purpose of military or similar services without government authorization could be prosecuted for illegal recruitment. Similarly, anyone publicly urging or otherwise inciting individuals to commit criminal acts may be liable for inciting rebellion.

This being said, the "Anti-terrorist Act" was also in force pre-September 11; the special Act concerns the policing of foreigners, allowing the authorities to act even before it has been fully proven that a crime is being planned. Pursuant to this Act, the Swedish government can deport any foreigner if it considers that the security of the country so requires, or if there are reasons to believe that the person in question is likely to commit or participate in the commission of criminal acts involving violence, threats or coercion for political ends. The Act also covers crimes suspected to have been committed abroad.

 

Following the terrorist attacks of September 11, 2001

 

Following the terrorist attacks of September 11, 2001, Sweden signed the 1999 International Convention for the Suppression of Terrorist Financing. The ratification of the Convention was approved by parliament, and the Act and Regulation incorporating its provisions into domestic law, came into force on July 1, 2002. Under the new Act, and in compliance with Article 2 of the Convention, it is an offense to finance terrorist crimes. Henceforth, the companies subject to the Money Laundering Act have a duty to analyze all transactions that may reasonably be suspected to be for the purpose of financing terrorist offenses, as defined by law.

On May 29, 2002, parliament ratified the Framework Decision. On December 4, 2002, draft legislation defining the crime of terrorism, which prior to that time was not recognized under Swedish domestic law, was approved by the government and submitted to the Legislative Council.

In the spring of 2002, Sweden was criticized by the United Nations Human Rights Committee and by the United Nations Committee against Torture for not having made sufficient provision to safeguard human rights in its anti-terrorist legislation. The Committee against Torture criticized the Control of Foreigners Act 1991, which allows for the deportation of foreigners suspected of "terrorism" based solely on a government decision. There is no appeal against this decision or procedure for its review, and the foreigner is not informed of the basis for the government decision.

 

 



Doctoral candidate, Irish Centre for Human Rights, f

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