“Foreign Fighters” and EU implementation of the UNSC resolution 2178. Another case of “Legislate in haste, repent at leisure…” ? (2)

by Dalila DELORENZI (FREE Group Trainee – Original in Italian)

1. Foreword
As the hostilities in Syria and Iraq continue and terrorism activities worldwide seem to be on the rise, EU Member States are increasingly confronted with the problem of aspiring and returning ‘foreign fighters’ as described already in this blog HERE. More precisely, in the EU the term is used to indicate European citizens who, after leaving to join jihadist groups, may have become further radicalised and acquired combat experience, and therefore be capable of carrying out deadly terrorist attacks once they return to Europe.

Such phenomenon is anything but new; however, its scale certainly is: as illustrated by the rise of the terrorist group calling itself “Islamic state”, the phenomenon has acquired an entirely new dimension – according to the EU intelligence sources 19% of the total fighters originated from the EU.

It explains then the wide perception of these individuals as a serious threat to the security of both individual Member States and the EU as a whole – especially in the aftermath of the recent terrorist attacks occurred in Brussels[1], Paris[2], Copenhagen[3].

Broadly speaking , a different way to envision human mobility and checks at external borders of Schengen has come to light. Whereas initially, they were rather conceived to protect the Schengen area from threats coming from country outside the Schengen zone, now such threat to security is deemed to be already inside the EU, due to the fact that most of the time militants returning to Europe possess the nationality of a Member State.

2. EU response

In addition to those actions intended to strength external border checks and to improve information exchange (with the enhanced role of Europol and Eurojust) through the Schengen Information System (even if, quite surprisingly, MS are still not yet obliged to share of the would-be “foreign Fighters”)  , the European Union is now examining the way how to better strengthen a coordinated judicial response.

To this regard, the European Union has taken as text of reference the UN Security Council  resolution 2178 (2014) on foreign fighters, which as described HERE has been drawn with the active support of the EU, of its Anti terrorism Coordinator and of some EU MS. UNSC Resolution 2178 place an obligation to all UN Member States to further criminalize certain behaviours which could be linked or related to a phenomenon of foreign fighters. In particular, it has been recognized that terrorism will not be defeated by military force, law enforcement measures and intelligence operations alone, but it is also necessary to address the conditions conducive to the spread of terrorism, moving then from repression back to prevention.

According to some MS and the Anti terrorism Coordinator  this can require  the revision of the current EU legislation on terrorism and notably the  Framework Decision on Combating Terrorism 2002/475/JHA, in order to criminalise at EU level also the activities listed in paragraph 6 of UNSC resolution 2178. It is worth recalling that the Framework Decision on Terrorism has not yet been “lisbonised” (eg reviewed in the light of the new Treaty and of the EU Charter) even if it has already been amended in 2008 by introducing the criminalisation of behaviours such as: a) public provocation to commit a terrorist offence; b) recruitment for terrorism; c) providing training for terrorism; d) participating in terrorist groups. However, these conducts here listed are all “active”. The UNSC Resolution 2178, instead, contains something new with regard to the criminal response to the phenomenon: criminalisation of passive behaviours, such as being recruited or receiving (instead of providing!) training for terrorism and the fact of travelling for terroristic purposes so that the question has been raised if a formal amendment of the EU legislation should be required to cover also this kind of “passive behaviours”. Moreover it is also to be taken in account that according to a Commission report on the implementation of the EU Framework Decision on Terrorism Member States have implemented it in a very diversified way. Moreover a further comparative overview of the legal situation in the Member States made by Eurojust  in 2014 by taking as a reference the UNSC Resolution 2178 requirements has not shown that additional EU norms should be required.

3. Implementation in the sein of the Council of Europe

In the meantime under the Belgian Presidency also the Council of Europe has launched its own initiative to implement rapidly  the UNSC Resolution 2178 On January 21, 2015, the Council of Europe has established the Committee on Foreign Terrorist Fighters and Related Issues tasked to prepare a draft Additional Protocol supplementing the European Convention on the Prevention of Terrorism (CETS No. 196), signed on May 16, 2005 and entry into force on June 1, 2007.

Precisely, the Protocol supplements the Convention’s provisions with regard to the criminalization of certain conducts covered by paragraph 6 of UNSC Resolution 2178 such as:

a) participating in association or group for the purpose of terrorism;
b) receiving training for terrorism;
c) travelling abroad for the purpose of terrorism;
d)funding travelling abroad for the purpose of terrorism;
e) organizing, or otherwise facilitating, travelling abroad for the purpose of terrorism.

Two months after the beginning of the negotiations the Commission (which has the statute of observer in the COE negotiating body has asked and obtained a mandate for the EU to become party of the negotiations because of the fact that the matter is already covered by the EU legislation so that for these aspects the EU (according to the CJEU AETR jurisprudence) has now exclusive competence.

At the 125^th session of the Ministerial Committee, the Additional Protocol has been eventually adopted on May 19, 2015 (See the Explanatory report HERE).

The additional protocol will be opened for signature at an international conference in Riga on October 22, 2015 and it is now time for the Council to decide if sign it or not .

Moreover it is worth recalling that, as the European Union is not yet a contracting party of the COE “mother” Convention on Terrorism it would be mandatory to sign also this text (which has never been formally debated at EU level).

Although such a relevant matter requires a timely reaction and maybe further enhancing the effectiveness of the criminal justice instruments and cooperation at the EU level, one can be concerned by the lack of public debate and the very short period during which the draft Protocol has been finalised and then adopted.

In fact, the speed of the process entails two main concerns, both procedural and substantial.

On the one hand, it has not been properly followed the formal procedure for the adoption of an international agreement, as foreseen in article 218 TFEU; on the other hand, it has not allowed an appropriate degree of consultation and debate on the significant consequences to the EU common rules.

4. Procedural Issue

Falling under the cadre of the procedure for the adoption of an international agreement, concluded between the EU and the Council of Europe, the legal basis is the article 218 TFEU.

As said above, such procedure has not been properly followed.

Pursuant to article 218 TFEU the Commission, representing the European Union, has the initiative by presenting recommendations to the Council for initiating negotiations. Then, the Council adopts a decision authorising the opening of negotiations.

Instead  of claiming the EU competence on these issues immediately after the adoption of UNSC Resolution 2178, the Commission called for the mandate to negotiate  only on March 30, 2015, while (informally the Commission and formally the EU Member States ) had already been participating in the previous negotiations. Indeed the Recommendation for a proposed Council Decision was published only after the negotiations for the Additional Protocol.

At the LIBE Committee meeting on April 1, 2015, the Commission tried to justify such violation: since the discussion in the sein of the Council of Europe had already been started, it was not possible to wait for a mandate and to take the risk of not being represented in the negotiations.

Nevertheless, this is clearly not consistent with the duty of sincere cooperation, as foreseen in article 4 (3) TEU, between MS and the EU.

The duty of sincere cooperation includes a mutual legal obligation for the EU and the Member States “to assist each other in carrying out the tasks which flow from the Treaties”. Such general principle has often been used to ensure close cooperation between the EU and the Member States in the context of participation to international organisations and conventions[4].

In the procedure for the adoption of the Protocol, a lack of sincere cooperation occurred, due to the fact that Member States taking part in the negotiations of an international agreement covering a matter already covered by the EU legislation, without having been  mandated to negotiate on behalf of the EU, means that Member States  have participated individually.

To make things even worse it has to be noted that the COE “Mother Convention” on terrorism  – in regard to which the Protocol is additional – even if it has not yet been signed by the EU, has been both signed and ratified by the majority of MS. This situation derives probably by the fact that the COE “Mother” Convention was concluded before the entry into force of the Lisbon Treaty when judicial cooperation in criminal matters was falling in the so called intergovernamental “third pillar” and EU Member States reluctantly recognised the EU competence in these domains (see also the case of the COE Budapest Convention on Cybercrime…)  Clearly after the entry into force of the Lisbon Treaty the  MS, have now been obliged to this time as Members of the Council, adopt the mandate (by written procedure) for the Commission to negotiate on behalf of the EU even if the mandate and the Draft Council decisions to sign the COE Convention and Protocol do not make clear if the EU exclusive competence cover everything or only part of these textes.

The Commission believes that the all the matter falls exclusively under the EU competence, but when finalising the mandate it has been decided to put off this discussion, along with the need to delineate competences between EU and MS. In fact, it has been introduced in the mandate – as well in the Convention, article 26 – the so-called disconnection clause: “Parties which are members of the European Union shall, in their mutual relations, apply Community and European Union rules in so far as there are Community or European Union rules governing the particular subject concerned and applicable to the specific case, without prejudice to the object and purpose of the present Convention and without prejudice to its full application with other Parties”.

Some Member States, instead, believe that the matter falls under the shared competence, as foreseen in article 4 TFEU, between MS and EU. Here, some reasons inferred by delegations’ contributions[5]:

1.  on the basis of article 83 (1) TFEU: “The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis”. The argument is that adopting minimum rules, it does not mean automatically exclusive competence for EU [Court of Justice, opinion 1/03, points 123 and 127].
2. on the basis of article 4 (2) TEU: “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State“.
3. on the basis of article 4(3) TEU: “Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.” It has been proposed to rephrase a recital in the draft council decision on the signing showing the shared nature of the competence and this on the basis of this article and the cooperation needed between EU and MS (Romanian delegation).
4. On the basis of article 72 TFEU: “This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security”. Internal security lies with MS.
5. Some MS, as the Polish delegation, take into account the fact that the Commission had the mandate to negotiate alongside with MS only during the last round of discussions in the Council Of Europe. As a result, MS played an active role during the entire process.
6. On the basis of article 3 (par. 2) TFEU: “The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.” MS supporting the shared competence refer to this article saying that the Protocol would not affect common rules [i.e. the existing Framework Decision 475/2002/JHA] or alter their scope. Two reasons are given:

a) the first one is based on the current legislation

: looking at the community law as it stands now: no provisions of the Protocol affect or alter the already existing EU legislation, because there is no overlap or close connection between the text of the Protocol and the one of the Framework decision. Indeed, most provisions of the Protocol and the relevant EU legislation have purely substantive character [and

not procedural 

as it occurred in all cases in which the Court of Justice has affirmed the exclusive competence of EU: for instance, opinion C -1/13 regarding procedures for returning   children]. If we were dealing with procedural rules, then they were altering the common rules because we would talk about provisions that establish clear consequences to follow. Here, instead, we just have a text containing minimum substantive rules and MS might go even further, by adopting more far-reaching measures.

In this regard, opposition by the Commission

: the Commission claims for exclusive competence underlining that, in spite of the substantive character,

all new criminal offenses

introduced by the Protocol

come under the notion of offenses of a preparatory nature, which is a matter already regulated at the Union level.
However even this argument has been criticised

: this assertion of exclusive Union competence does not take into account article 9 of the Protocol 36 (Transitional provisions). Pursuant to article 9, the legal effects of the acts (of the Union in the field of police and judicial cooperation in criminal matters) adopted prior to the entry into force of the Lisbon Treaty (2009) – Framework Decision on combating terrorism has been adopted in 2002 and then revised in 2008 – are preserved until those acts are repealed, annulled or amended, which is not the case of out Framework Decision. So, its legal effect remains the same and correspond to that prior to the entry into force of Lisbon Treaty,

which entails that we cannot rely upon art. 3 (par. 2) TFEU.

The Commission’s argument is not well-founded.

b) The second one is based on the future legislation:

no changes to the Framework Decision 2002/475/JHA as amended in 2008 have yet been decided. More precisely, no proposal of a legal act concerning crimes covered by the Protocol has so far been put forward by the Commission (Polish delegation).

Opposition:

the Commission expressed, about the exclusivity of its competence,  the aim at updating the Framework Decision on combating terrorism next year (2016) with the intention of accommodating the obligations stemming from the Additional Protocol in tandem. The legislative preparations in view of this have already been put in place: in particular, it appears, on the basis of the European Agenda on security, that the FD on terrorism will be amended taking into account the Additional Protocol (i.e. the corresponding provisions on criminalisation obligations are to be implemented into the Union law).

Nevertheless, even if the competence ends up being shared, we should consider that, in case of shared competence, negotiations are conducted jointly by the Commission and national experts. Then, the EU and Member States are authorised to adopt binding acts in these fields, but

Member States may exercise their competence only in so far as the EU has not exercised, or has decided not to exercise, its own competence

.

Therefore, in this matter where the European Union has already exercised its competence – by regulating this subject at the European level with the existing Framework Decision on Combating Terrorism – MS should not legislate without taking into account the EU rules, but rather they have to move within the EU cadre already existing.

5. Content Issue: the impact on the current legislation

Following the signature of the Additional Protocol by the Council on behalf of the EU, it will be needed to update the EU’s 2002 Framework Decision on Combating Terrorism. Then, the way by which the current European legislation will be revised depends on how the competence issue between EU and MS will be solved. Whether the competence lies with the EU, revision will be taking place by EU legislative instruments such as a post-lisbon directive; otherwise, MS national legislation will be preferred.

Unfortunately, in regard to the content, the Protocol seems to raise some concerns: in particular, it covers even earlier stages of preparatory acts – multiplying then the infractions – and tackles the terrorist intent requirement from a too broad perspective.

In fact, the formulation of all behaviours criminalised in the Protocol relies on a subjective element: more precisely, the specific intent (“purpose”) of carrying out the commission of the principal terrorist offence. For instance, it could not be criminalised the fact of travelling to a conflict area per se, but only if there are grounds to prove an attempt at committing a terroristic offence.

However, such slippage from reaction to prevention – by criminalising “preparatory acts” – seems to be problematic, because these provisions have been formulated in such broad terms that would pave the way for criminalisation of conduct with no, or only very distant, causal connection to a principal offence. As a result, such wording is not consistent with the principle of legality – enshrined in Article 7 ECHR and Article 15 ICCPR, affirmed by the European Court of Human Rights as an essential element of the rule of law and an important protection against arbitrariness in criminal law – and it risks arbitrary application in practice. It might be quite hard for individuals, in fact, to prove such intent and to ascertain with sufficient certainty which conduct could constitute a criminal offence.

These concerns have been raised by the Civil society (Amnesty International and the International Commission Of Jurists) during the COE negotiations and have been partially mirrored in the Council of Europe Parliamentary Assembly Opinion on the Protocol but they have not particularly impressed the negotiators so that the text of the Protocol has not been amended.

Now the ball is in the EU camp and it has to be seen if the more stringent requirements arising from the EU Law and notably from the EU Charter will allow a more thoughtful position by the EU co-legislator.

In principle the Charter of Fundamental Rights should always be the compass for EU policies in this field and for Member States implementing these policies.  This is the reason why, before the Council proceeds on signing the Protocol, the European Parliament should be promptly and immediately informed of all related actions, in order to check on fundamental rights aspects, which appear to be marginalised in this initiative marked by the feeling of urgency.

For instance, travelling for terrorist purposes engages the right to freedom of movement, which includes the freedom to leave any country, including one’s own, as foreseen in Article 2 of Protocol 4 ECHR and come back in the same Country (not to speak of the EU legislation and jurisprudence on the freedom of movement of EU citizens). In this regard, then, the Protocol should specify at least that the offence of travelling for the purpose of terrorism should require a demonstration of the intent to commit or otherwise participate in the commission of a criminal act punishable also under international law (and this would not be the case for the participation to an armed conflict if done by respecting international law – Jus in bello).

Another problematic issue is related to the compliance of the Protocol Provisions with principle of the presumption of innocence (as protected by the Convention of Human Rights and by Article 48 of the EU Charter). The Protocol does not ensure that the defendant should not in any circumstances bear the burden of the proof of such specific intent, for instance, in establishing that his or her travel to a specific area would be for a legitimate purpose.

Moreover, the Additional Protocol aims at broadly facilitating investigations and prosecutions of acts of a preparatory nature having the potential and danger of leading to the commission of terrorist offences, facilitating then international cooperation through enhanced information exchange. However, even here, in relation to the exchange of information with third countries, it is not clear how it is ensured that the information collected will not be shared with a regime that has a very different way to look at human rights (to put it lightly…), using them for the wrong purpose. Nevertheless, in this regard the Commission has argued that, by adopting this Protocol, the EU is not taking any new obligations in term of data sharing, but it is just about setting up 24 hours contact points.

Ultimately, taking into account all these possible threats to fundamental rights, before the Council signs, someone (the Commission ? the European Parliament ?) should ask an Opinion to the CJEU to verify if the COE “Mother”  Convention on terrorism and its Protocol comply with the EU Treaties and the Charter of Fundamental Rights.

It is more than likely that if seized the Court of Justice will inevitably focus also on the existing EU counter-terrorism legislation which for some aspects culd also be considered excessive in the light of the EU Charter

Regrettably , at the moment, no one has called for such evaluation, neither about the current legislation in this field. It has to be seen if the European Parliament which until now has been taken out of the debate (and was even absent when the Mother Convention was negotiated) will call for such a CJEU Opinion. It would be a question of common sense (and even more important of the problems raised in another EP request for opinion on the compatibility of the EU-Canada PNR agreement with the EU Charter) but the newly elected parliamentarians remain very vocal as in the previous legislature but less determined to create problems for the national governments which as everyone can see have played all the possible roles before the UNSC, before the COE and now would arguably obtain achieve the EU blessing also for the national legislations they have already adopted in this domain. 

 NOTES