The Commission’s «Proposal for a Council Framework Decision amending Framework Decision 2002/475/JHA on combating terrorism»

The Commission’s «Proposal for a Council Framework Decision amending Framework Decision 2002/475/JHA on combating terrorism» [COM(2007) 650, Brussels, 6.11.2007]

Commentary

Introduction

The Proposal under consideration was presented by the European Commission on November 6, 2007, as part of its new package of proposals, «aimed at improving the EU’s capabilities in the fight against terrorism». This «counter-terrorism package» comprises:

i) a Report concerning the national implementation of the well-known Council Framework Decision of 13 June 2002 on Combating Terrorism (2002/475/JHA), based on Article 11 thereof [COM(2007) 681 final].

ii) Two (2) Communications to the European Parliament and the Council: the first one, general and descriptive in nature, bearing the title «Stepping up the fight against terrorism» [COM(2007) 649 final], presents the general outline of the Commission’ s new initiatives, and its own considerations and rationale behind the adoption of this comprehensive «package». The second Communication involves a the Action Plan for a specific aspect of counter-terrorist policy, namely the enhancement of the security of explosives, as its title, «Enhancing the security of explosives», indicates [COM(2007) 681 final]. iii) Two (2) legislative proposals, the first of which for a Council Framework Decision «on the use of Passenger Name Record (PNR) for law enforcement purposes» [COM(2007) 654 final] merits further analysis in the future. Overview of the Proposal The second legislative proposal, on the amendment of the 2002 Framework Decision on combating terrorism, will undoubtedly raise serious criticism for its overall rationale and the specific legislation of Member States that it aims to harmonize. This Proposal essentially aims to create three new categories of criminal offence and achieve their criminalisation by all EU Member States: provocation to commit terrorism, recruitment for terrorism and training for terrorism. These new terrorist offences are an addition to the existing provisions of the Framework Decision on Combating Terrorism, which played a key role in the harmonization of the definition of terrorism and terrorist-related offences in the national legislations of the EU Member States. [1]

As it is suggested in the Proposal’s Explanatory Memorandum, however, the original provisions do not sufficiently cover a series of «preparatory acts», as the above-mentioned categories of –proposed- offences are explicitly referred to. Articles 2 and 4 of the 2002 Framework Decision do state that inciting, aiding or abetting terrorist offences, as well as directing or participating in a terrorist group should be made punishable; the argument is that, nevertheless, they make no reference to the «dissemination of terrorist propaganda and terrorist expertise, in particular through the internet» (page 4 of the Proposal).

Thus, the Commission makes its rationale evident, as the Proposal initially presents in detail the role of modern information and communication technologies in the propagation of terrorism. As a consequence, the prevention and prosecution of specific preparatory acts of terrorist offences, lies at the heart of the current proposal; the Internet, as «one of the principal boosters of the processes of radicalisation and recruitment…as a source of information on terrorist means and methods» (page 2 of the Proposal), is considered by the Commission to be the major means for the perpetration of these essentially preparatory acts. This is the main reason why the primarily Internet-based provocation/training/recruitment for terrorism should be prevented. Interestingly, the text itself of the proposed amendment does not cite the Internet, or any other means for that matter, of perpetrating the «intentional acts» that have to be criminalized thereby in the Member States.

Critical Analysis

The following points are considered here, as principal foci of a preliminary examination of the Commission’s Proposal:

a) Subsidiarity Principle

The explanatory memorandum attempts to ground the proposal firmly and one of the means to this end, is the argument of its consistency with the principle of subsidiarity (page 6). Thus, it is argued that the objectives of the proposal cannot be sufficiently achieved by the Member States themselves on the one hand, and that the European Union action will better achieve the objectives on the other.

Nevertheless, this argumentation should not be considered to fully satisfy the requirements of subsidiarity. An extremely vague reference is made to the «differences in legal treatment in the different Member States» that are supposed to hinder the coordinated efforts required at EU level. While someone could argue that the «new modus operandi of terrorists» does, indeed, «have an intrinsic international and cross-border character», the Commission’s approach does little to specifically justify why «the extension of the current common definition of terrorism will prevent terrorists from benefiting from loopholes and divergences of national legislation».

On the other hand, it is inevitable that such a proposal would be made at the European Union level, in view of the preceding EU Strategy and Action Plan on Radicalisation and Recruitment, and subsequent calls «to develop measures to combat the misuse of the internet for terrorist purposes while respecting fundamental rights and principles» (Presidency Conclusions of the 15-16 June 2006 European Council).

b) «Freedoms in rivalry» and the new criminal offences The forms of behaviour that are criminalised in the proposed amendment constitute an admittedly problematic aspect thereof. Indeed, from the point of view of the consistency of the proposal with the protection of human rights and fundamental freedoms, lip service could be argued to be paid only, since it is at a rhetorical level, with no specific guarantees, that this protection is given consideration (as the Explanatory Memorandum mentions, in page 4).

First of all, one cannot help pointing to the definition of «public provocation to commit a terrorist offence», one of the proposed «offences linked to terrorist activities» -the other two being «recruitment for terrorism» and «training for terrorism». The definition is abstract enough to encompass a potentially very wide array of activities. The behaviour being criminalised is: «distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of one of the acts…(constituting a terrorist offence)…where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed». Freedom of expression is a «rival freedom» which is at stake and could be radically curtailed in the event its exercise is misconstrued as intentional act of «public provocation to commit a terrorist offence». The same risk also applies to the case of recruitment or training, and their vague definitions, that could include a wide range of activities, also instances of the exercise of freedom of expression or assembly, despite assertions to the contrary.

The right to security, envisaged as being in rivalry with other freedoms («freedoms in rivalry»), should, furthermore, be evaluated in specific cases, with the use of criteria that should be known beforehand and the application of which should be objectively controlled. This is not the case with the terrorist-related offence hereby created: a wide margin of appreciation could be left to national executive authorities to prosecute behaviours, argued to fall under national legislative definitions of «public provocation to commit a terrorist offence», in the likely case that national legislations will exactly follow the abstract definition of the Framework Decision.

In this manner, the discretionary power of the Executive power is unduly widened and the relationship –of rivalry- with other freedoms is inappropriately handled. What is more important is the opening up by the Member States, of a potential field of Exceptionalism to an unprecedented extent. The Framework Decision predictably affirms that nothing in it may be interpreted as being intended to reduce or restrict fundamental rights or freedoms, such as freedom of expression, assembly, or of association (14th Recital) as well as the dissemination of information for scientific, academic or reporting purposes (15th Recital). Nevertheless, it is doubtful whether such a rationale will ultimately prevail, in view of the lack of objective criteria for the evaluation of specific behaviours, as mentioned above.

A problem associated with all the terrorist-linked offences in the Framework Decision is that they also deviate from one of the fundamental rules in our criminal system, i.e. that criminal law measures should strictly be associated with one’s actions, and not with whatever one has in mind. [2] The problem is aggravated by the extension of the list of terrorist-related offences, since, especially in the new offence of «public provocation», the necessary causal link between the conduct itself and the intent of the perpetrator can be established with a mere indication of the creation of a danger, and not necessarily of a terrorist act, in its strict definition.

Conclusion

The proposed amendment of the 2002 Framework Decision on combating terrorism further increases the impression of a «(in)security continuum» that could be used as an argument for the criminalization of otherwise legal behaviours; these behaviours could, most importantly, be regarded as forms of exercise of such fundamental freedoms as the freedom of expression. In fact, the main problem of the new offences to be created is the inadequate treatment of the rivalry between freedoms that they involve, by virtue of the abstract definitions and subjective criteria that are proposed to national legislative authorities, an element that ultimately poses a threat to the rule of law.