(*) The new EU Draft Directive on terrorism is the first full-fledged text addressing terrorism in the post-Lisbon and post-EU Charter of fundamental rights framework not to speak of the EU Internal Security Strategy. Regrettably these EU debates have not until now been adequately echoed by the press, the academia or even the EU national parliaments. It could then be worth promoting a public debate about that proposal in the light of the Charter of Fundamental Rights and of the jurisprudence of the Court, bearing in mind the need for effective Union action on the Union’s internal and external security. A whole host of more immediate measures have been introduced over the last year in the attempt to deal with terrorism within Europe.
At the beginning of December last year the European Commission has submitted to the European Parliament and the Council a draft Directive updating the current Framework Decision on combating terrorism, introduced in 2002 (2002/475/JHA) and amended in 2008 (Framework Decision 2008/919/JHA with reference to the notion of preparatory acts) which dates back to the pre-Lisbon period. On the implementation of these pre-Lisbon Framework decisions see the Commissions reports of 2004 (see also SEC (2004) 688; COM(2007) 681 final, 6 November 2007, see also SEC(2007) 1463 (pdf, html).
This Draft Directive will also implement, at EU Level the 2005 Council of Europe Convention on Terrorism as well as the Foreign Fighters Protocol (14) signatory to a Protocol to the Council of Europe Convention on combating terrorism, not yet ratified by the EU and its Member Sates. However already in May 2015 Council of Europe (CoE) the “foreign fighters protocol” has been opened to signature. On October 2015 the EU and 17 states have already signed on October 2015 the foreign terrorist fighter agreement SEE Council of Europe CODEXTER page
Exclusive or shared EU Competence ?
An important issue to be dealt with is the scope of the EU competence in this domain. According to the Commission “..the Union has exclusive external competence to sign and conclude the Additional Protocol supplementing the Council of Europe Convention on the Prevention of Terrorism pursuant to Article 3(2) TFEU. That provision also precludes Member States from signing and concluding the Protocol. The Union’s exclusive competence extends to the entire Protocol, including its Article 7, which is ancillary to the substantive provisions of the Protocol. In this regard, the Commission reserves the right to make use of all the legal means at its disposal to ensure the respect of the provisions of the Treaties. As regards the Convention, the Commission takes the view that the Union’s competences are not limited to areas covered by the Framework Decision on terrorism.” (see here page 18. Emphasis added)
However the draft Council Decision concluding the EU accession to the Convention and to the Protocol maintain that the Member States can still play a role (with stricter provisions ?) above the EU “minimum rules”. That having been said the CJEU has not yet clarified if Member States can further develop new criminalisation cases or if, (as it is foreseen by art.82.2 TFEU ) “.. Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.)”
THE INTERNATIONAL LEVEL (UN-COE)
It has to be taken in account that the negotiation of this legislative text which implements at EU level notably the operational art.6 of the United Nations Security Council Resolution 2178/14the UNSC RESOLUTION 2178/14 (dealing with the so called “foreign fighters” phenomenon). It is worth noting that UNSC Resolution 2178/14 try for the first time to establish a common strategy covering the case of foreign fighters in an armed conflict (to be dealt with International Humanitarian Law) and of international terrorism (covered by “traditional” criminal law). UNSC Resolution has been adopted on the basis of Chapter VII of the UN Charter so that it is binding for the UN Member States. At European level UNSC Resolution has already been implemented by several European States as well as, at supranational level by the Council of Europe and by the EU. As far as the Council of Europe is concerned UNSC Resolution has been almost mirrored in a Protocol of the European Convention on terrorism which has been signed in May 2015 both by the European Union and by the EU Member States (even if the respective competencies in this domain are still to be defined).
THE EUROPEAN UNION LEVEL
The adoption of the Terrorism Directive goes hand in hand with the adoption of the Council decisions dealing with the EU accession to the Council of Europe Convention on terrorism and of its protocol on foreign fighters.
At legislative level a “general approach” has already been agreed by the Council of the European Union in March this year (see below) and the European Parliament is also defining its own position in view of a possible “first reading agreement” in the coming months.
From a content perspective the EU draft Directive should take in account the Charter of fundamental rights and the relevant jurisprudence of the CJEU and of ECtHR. As recently recognised by the internal EU Council guidelines “The recent case law of the European Court of Justice (See Judgment of 8 April 2014, Cases C‑293/12 and C‑594/12, Digital Rights Ireland) confirms that the Court will not satisfy itself with anything less than a strict assessment of the proportionality and necessity of measures that constitute serious restrictions to fundamental rights, however legitimate the objectives pursued by the EU legislature. It also indicates that such measures do not stand a serious chance of passing the legality test unless they are accompanied by adequate safeguards in order to ensure that any serious restriction of fundamental rights is circumscribed to what is strictly necessary and is decided in the framework of guarantees forming part of Union legislation instead of being left to the legislation of Member States. Moreover, the legislator should be able to demonstrate that it has explored alternative ways to attain the objectives pursued which would be less restrictive of the rights of the individuals concerned.” (See also the KADI I and II jurisprudence, the Melloni ruling on the primacy of EU law also in criminal law as well as the recent Schrems rulings on the need for the EU legislator to take in account the principle of proportionality and necessity when limiting the freedoms of individuals).
From a more political perspective the reasons pushing for a fast-track procedure to adopt the new rules are quite understandable even if it is less understandable that, notwithstanding the provisions of art.70 TFEU, no credible evaluation has until now been made of the impact of the legal framework into force nor an impact assessment has been made for the proposed amendments criminalizing the so-called “foreign fighters”.
|LEGISLATIVE PREPARATORY WORKS|
TFEU Article 83(1)“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.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime…”
and Article 82(2) “2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.They shall concern: (…) c) the rights of victims of crime; (…) Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.
As far as the OPT-IN OPT-OUT Protocols are concerned: the position of UK and Ireland not known yet; Denmark is excluded (although the 2002 Framework Decision and its 2008 amendment “shall continue to be binding upon and applicable to Denmark)”
MAIN EU INSTITUTIONAL ACTORS
- EP COMMITTEES :Monika Holmeier (EPP) appointed as rapporteur for LIBE on 11 January 2016. Shadow Rapporteurs : Chinnici Caterina (S&D), Ernst Cornelia, (GUE) Jezek Petr (ALDE) , Kirkhope Timothy (ECR), Joly Eva (GREENS), Agea Laura (EFD) and Fontana Lorenzo (Europe of Nations). Committees for opinion FEMM, JURI.
- COUNCIL WORKING GROUPS : DROIPEN, COPEN
- EC DIRECTORATE GENERALS : HOME and JUST
TIMELINE – CALENDAR
2 December 2015 Proposed Directive on combating terrorism COM(2015) 625 final,
16 December 2015: Comparison table of new proposals and existing EU rules (15279/15, pdf)
13 January 2016: Member States on Commission’s proposal: Compilation of replies (5201/16, pdf): contains the detailed views of the governments of Germany, Finland, France, Italy, Ireland, Latvia, Portugal, Spain, Sweden and the UK. See also: 5201/16 COR 1 (pdf)
25 January Examination of the text
2 February : Examination of the text (LIMITE doc no: 5720-16, pdf): Delegations are invited to examine the modified text of the proposed Directive, as set out in this document. Discussions at the next meeting on 8 February 2016 will focus on these drafting suggestions, including recitals.” In part concern the two documents from Sweden and Italy below.: Swedish Delegation – drafting proposals (LIMITE doc no: 5467-add-1-16, pdf): Human rights clause and “An possibility to exempt one’s own citizens travelling home” : Italian Delegation – drafting proposals (LIMITE doc no: 5467-add-2-16, pdf): “Investigative tools” and “Exchange of information and cooperation concerning terrorist offences”
12 February : Examination of revised text
23 February : Examination of revised text
3 March : DRAFT General Approach is already foreseen at the 10 March 2016 JHA Meeting
09 March : Civil lIberties (LIBE) Draft REPORT
10 March: JHA Meeting (General Approach adopted)
07 April : Civil Liberties Committee deadline for Amendments
21 April:first exchange of views (see Draft Agenda) on the amendments
AMENDMENTS 56 – 246 Documents in dossier LIBE/8/05240
AMENDMENTS 247 – 438 – Documents in dossier LIBE/8/0524
- Official complementary documents
- EU Counter-Terrorism Coordinator: Effective criminal justice response to the phenomenon of foreign fighters (LIMITE, 14188/14, October 2014, – STATEWATCH)
- Foreign Terrorist Fighters: Eurojust’s Views on the Phenomenon and the Criminal Justice Response (RESTREINT/RESTRICTED, November 2015, pdf – STATEWATCH)
- Foreign Fighters: Eurojust’s Views on the Phenomenon and the Criminal Justice Response – Updated Report (LIMITE, January 2015, STATEWATCH)
- Border checks on suspected “foreign fighters”: Annex to the Commission Recommendation amending the Recommendation establishing a “Practical Handbook for Border Guards (Schengen Handbook)” to be used by Member States’ competent authorities when carry out the border control of persons (C(2006) 5186 final) (June 2015, STATEWATCH)
CIVIL SOCIETY – ACADEMIA COMMENTS (in reverse date order)
- 26-04-16: ECLAN Conference: Intervention of Prof. Vaios Koutroulis “The balance between criminal law and international humanitarian law in terrorism cases”
15-03-16 Meijers COMMITTEE : comments to the draft Directive, the Council “General Approach” and the EP draft report
- 10-03-16 Notes to the Council General Approach and Civil Society general remarks (Martina BUSCEMI)(** see below)
- 01-03-16 CIVIL SOCIETY GENERAL REMARKS ON THE COMMISSION PROPOSAL
- Preliminary public observations on the terms of reference to draft an Additional Protocol supplementing the Council of Europe Convention on the Prevention of Terrorism (Amnesty International and International Commission of Jurists, March 2015, pdf)
- Blowback – Foreign fighters and the threat they pose (July 2014, CAGE)Back to post-9/11 panic? Security Council resolution on foreign terrorist fighters (September 2014, Just Security, link)By Martin Scheinin
- Foreign Fighters under International Law (October 2014, Geneva Academy of International Humanitarian Law and Human Rights, pdf link)
- Draft additional protocol to the Council of Europe Convention on the Prevention of Terrorism – Joint submission by Amnesty International and the International Commission of Jurists to the Committee on Foreign Fighters and Related Issues (COD-CTE) (May 2015, pdf)
- “Foreign Fighters” and EU implementation of the UNSC resolution 2178. Another case of “Legislate in haste, repent at leisure…” ? (1) and (2)
- ‘Foreign fighters’ – Member States’ responses and EU action in an international context (February 2015, European Parliament Research Service, pdf)Background and further reading (also on Statewatch PAGE )
- Briefing: Counter-terrorism: what the EU is discussing after the Paris attacks (November 2015)
- UN Special Rapporteur raises alarm over effect of counter-terrorism policy on civil society (October 2015)
- Key European terrorism legislation may be revised (December 2014)
- UN unanimously passes resolution to combat ‘foreign terrorist fighters’ (September 2014)
- “Foreign fighters” phenomenon spurs dozens of new counter-terrorism policies (June 2014)
- The draft EU Directive on Combating Terrorism: Much Ado About What? (January 2016, EU Law Analysis, link)
COUNCIL GENERAL APPROACH (doc 6655/16)
Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 83(1) and Article 82(2) (c) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure,
(1) The European Union is founded on the universal values of human dignity, freedom, equality and solidarity, respect for human rights and fundamental freedoms. It is based on the principle of democracy and the principle of the rule of law, principles which are common to the Member States.
(2) Acts of terrorism constitute one of the most serious violations of the universal values of human dignity, freedom, equality and solidarity, enjoyment of human rights and fundamental freedoms on which the European Union is founded. It also represents one of the most serious attacks on democracy and the rule of law, principles which are common to the Member States and on which the European Union is based.
(3) Council Framework Decision 2002/475/JHA is the cornerstone of the criminal justice response to counter terrorism. A legal framework common to all Member States, and in particular, a harmonised definition of terrorist offences, serves as a benchmark for information exchange and cooperation between the competent national authorities under Council Framework Decision 2006/960/JHA, Council Decision 2008/615/JHA and Council Decision 2005/671/JHA, Regulation (EU) No 603/2013 of the European Parliament and of the Council, Council Framework Decision 2002/584/JHA and Council Framework Decision 2002/465/JHA.
(4) The terrorist threat has grown and rapidly evolved in recent years. Individuals referred to as “foreign terrorist fighters” travel abroad for terrorism purposes. The United Nations Security Council has expressed its concern in UNSCR 2178 (2014) in relation to the foreign terrorist fighters. The Council of Europe has, in this respect, adopted in 2015 the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism (CETS No 217). Returning foreign terrorist fighters pose a heightened security threat to all EU Member States. (…) In addition, the European Union and its Member States face increased threats from individuals inspired or instructed by terrorist groups abroad but who remain within Europe.
(5) Taking account of the evolution of terrorist threats and legal obligations to the Union and Member States under international law, the definition of terrorist offences, (…)offences related to a terrorist group and offences related to terrorist activities, should be further approximated in all Member States, so that it covers more comprehensively conduct related to in particular foreign terrorist fighters and terrorist financing. These forms of behaviour should be punishable also if committed through the Internet, including social media.
(6) The offences related to terrorist activities are of a very serious nature as they have the potential to lead to the commission of terrorist offences and enable terrorists and terrorist groups to maintain and further develop their criminal activities, justifying the criminalisation of such conduct.
(7) The offenses related to public provocation to commit a terrorist offence act comprise, inter alia, the glorification and justification of terrorism or the dissemination of messages or images including those related to the victims of terrorism as a way to gain publicity for the terrorists cause or seriously intimidating the population, provided that such behaviour causes a danger that terrorist acts may be committed. To strengthen actions against public provocation to commit a terrorist offence, and also taking into account the increased use of technology, in particular the Internet, it seems appropriate for Member States to take measures to remove or to block access to webpages publicly inciting to commit terrorist offences. Where such measures are taken, they must be set by transparent procedures and provide adequate safeguards, in particular to ensure that restrictions are limited to what is necessary and proportionate.
(8) Considering the seriousness of the threat and the need to in particular stem the flow of foreign terrorist fighters, it is necessary to criminalise the travelling abroad to a country outside the Union for terrorist purposes, not only in order to commit terrorist offences and provide or receive training but also to participate in the activities of a terrorist group. The criminalisation under this Directive is limited to the travel to countries outside the Union as the destination where the person concerned intends to engage in terrorist activities and offences. The travel to the State of destination may be direct or by transiting other States en route. Any act of facilitation of such travel should also be criminalised. It is not indispensable to criminalise the act of travelling as such.
(9) Criminalisation of the receiving training for terrorism complements the existing offence of providing training and specifically addresses the threats resulting from those actively preparing for the commission of terrorist offences, including those ultimately acting alone.
(10) Terrorist financing should be punishable in the Member States. Criminalisation should cover the financing of terrorist acts, the financing of a terrorist group, as well as other offences related to terrorist activities, such as the recruitment and training, or travel for terrorist purposes, with a view to disrupting the support structures facilitating the commission of terrorist offences. (…)
(11) Furthermore, the provision of material support for terrorism through persons engaging in or acting as intermediaries in the supply or movement of services, assets and goods, including trade transactions involving the entry into or exit from the Union, such as sale, acquisition or exchange of a cultural object of archaeological, artistic, historical or scientific interest illegally removed from an area controlled by a terrorist group at the time of the removal, should be punishable in the Member States, as aiding and abetting terrorism or as terrorist financing if performed with the knowledge that these operations or the proceeds thereof are intended to be used, in full or in part, for terrorist purposes or will benefit terrorist groups. Further measures may be necessary with a view to effectively combat the illicit trade in cultural goods as a source of income for terrorist groups.
(12) The attempt to travel abroad for terrorist purposes, should be punishable, as well as the attempt to provide training and recruitment for terrorism.
(13) With regard to the criminal offences provided for in this Directive, the notion of intention must apply to all the elements constituting those offences. The intentional nature of an act or omission may be inferred from objective, factual circumstances.
(14) Furthermore, penalties should be provided for natural and legal persons having committed or being liable for such offences, which reflect the seriousness of such offences.
(15) Jurisdictional rules should be established to ensure that the offences laid down in this Directive may be effectively prosecuted. In particular, it appears appropriate to establish jurisdiction for the offences committed by the providers of training for terrorism, whatever their nationality, in view of the possible effects of such behaviours on the territory of the Union and of the close material connexion between the offences of providing and receiving training for terrorism.
(15a) To ensure the success of investigations and the prosecution of terrorist offences, offences related to a terrorist group or offences related to terrorist activities, those responsible for investigating and prosecuting such offences should have the possibility to make use of effective investigative tools such as those which are used in combating organised crime or other serious crimes. Such tools should, where appropriate, while taking into account the principle of proportionality and the nature and seriousness of the offences under investigation in accordance with national law, include, for example, the search of any personal property, the interception of communications, covert surveillance including electronic surveillance, the taking and the fixing of audio recordings in private or public vehicles and places, and of visual images of persons in public vehicles and places, (…) and financial investigations(…). The right to the protection of personal data should be respected.
(16) Member States should adopt (…) measures of protection, support and assistance responding to the specific needs of victims of terrorism, in accordance with Directive 2012/29/EU of the European Parliament and the Council and as further qualified by this Directive. Victims of terrorism are those defined in Article 2 of Directive 2012/29/EU being a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a terrorist offence, and family members of a person whose death was directly caused by a terrorist offence and who have suffered harm as a result of that person’s death. (…) Family members of surviving victims of terrorism, as defined in Article 2 of Directive 2012/29/EU, have access to victim support services and protection measures in accordance with Directive 2012/29/EU.
(16a) Member States should ensure that relevant mechanisms or protocols are in place allowing for activation of support services which are able to address the specific needs of victims of terrorism immediately after a terrorist attack and for as long as necessary thereafter. Such support services should take into account that specific needs of victims of terrorism may evolve in time. In that regard, the Member States should ensure that support services will address in the first place at least the emotional and psychological needs of the most vulnerable victims of terrorism, and will inform all victims of terrorism about the availability of further emotional and psychological support including trauma support and counselling.
(17) Member States‘ should (…) ensure that all victims of terrorism have access to information about the victims’ rights, about available support services and (…) compensation schemes in the Member State where the terrorist offence was committed. Member States concerned should take appropriate action to facilitate cooperation with each other in order to ensure that victims of terrorism, who are residents of a Member State other than that where the terrorist offence was committed have effective access to such information. Moreover the Member States should ensure that victims of terrorism have access to a long-term support services in the country of their residence, even if the terrorist offence took place in another EU country.
(18) Given that the objectives of this Directive cannot be sufficiently achieved by the Member States unilaterally and can therefore, because of the need for European-wide harmonised rules, be better achieved at the level of the Union, the Union may adopt measures, in accordance with the principle of subsidiarity, as set out in Article 5 of the Treaty on the European Union. In accordance with the principle of proportionality, as set out in that Article 5, this Directive does not go beyond what is necessary in order to achieve those objectives.
(19) This Directive respects the principles recognised by Article 2 of the Treaty on the European Union, respects fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including those set out in Titles II, III, V and VI thereof which encompass inter alia the right to liberty and security, freedom of expression and information, freedom of association and freedom of thought conscience and religion, the general prohibition of discrimination in particular on grounds of race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, the right to respect for private and family life and the right to protection of personal data, the principle of legality and proportionality of criminal offences and penalties, covering also the requirement of precision, clarity and foreseeability in criminal law, the presumption of innocence as well as freedom of movement as set forth in Article 21(1) of the Treaty on the Functioning of the European Union and Directive 2004/38/EC. This Directive has to be implemented in accordance with these rights and principles. This Directive has to be implemented in accordance with these rights and principles taking also into account the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights and other human rights obligations under international law.
(19a) This Directive should not have the effect of altering the rights, obligations and responsibilities of the Member States under international law, including under international humanitarian law. The activities of armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and, inasmuch as they are governed by other rules of international law, activities of the military forces of a State in the exercise of their official duties are not governed by this Directive.
(20) The implementation of the criminalisation under this Directive should be proportional to the nature and circumstances of the offence, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness, racism or discrimination.
(20a) Nothing in this Directive should be interpreted as being intended to reduce or restrict the dissemination of information for scientific, academic or reporting purposes. The expression of radical, polemic or controversial views in the public debate on sensitive political questions, falls outside the scope of this Directive and, in particular, of the definition of public provocation to commit terrorist offences.
(21) The Directive should replace Framework Decision 2002/475/JHA for the Member States bound by this Directive.
(22) In accordance with Article 3 of the Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on the European Union and to the Treaty on the Functioning of the European Union, the United Kingdom and Ireland have notified their wish to take part in the adoption and application of this Directive.
(23) In accordance with Articles 1 and 2 of the Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on the European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, the United Kingdom and Ireland are not taking part in the adoption and application of this Directive and are not bound by it or subject to its application.
(24) In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark annexed to the Treaty on the European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application. Framework Decision 2002/475/JHA shall continue to be binding upon and applicable to Denmark.
HAVE ADOPTED THIS DIRECTIVE:
Title I: Subject matter and definitions
Article 1 Subject matter
This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of terrorist offences, offences related to a terrorist group and offences related to terrorist activities, as well as (…) measures of protection of and assistance to victims of terrorism.
Article 2 Definitions
For the purposes of this Directive, the following definitions shall apply:
- “funds” means assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit,
- “legal person” means any entity having legal personality under the applicable law, except for States or public bodies in the exercise of State authority and for public international organisations,
- “terrorist group” shall mean: a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences; “Structured group” shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.
- merged with letter “c”
Title II: Terrorist offences and offences related to a terrorist group
Article 3 Terrorist offences
- Each Member State shall take the necessary measures to ensure that the intentional acts referred to in paragraph 2, as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation are defined as terrorist offences where committed with the aim of one or more of the following:
- seriously intimidating a population;
- unduly compelling a Government or international organisation to perform or abstain from performing any act;
- seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.
- Intentional acts referred to in paragraph 1 are
- attacks upon a persons’ life which may cause death;
- attacks upon the physical integrity of a person;
- kidnapping or hostage taking;
- causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss;
- seizure of aircraft, ships or other means of public or goods transport;
- manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons;
- release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life;
- interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life;
- illegal system interference, as referred to in Article 4 of Directive 2013/40/EU on attacks against information systems in cases where Article 9, paragraph (3) or (4)(b) or (c) of the said Directive apply, and illegal data interference, as referred to in Article 5 of Directive 2013/40/EU on attacks against information systems in cases where Article 9, paragraph (4)(c) of the said Directive applies;
- threatening to commit any of the acts listed in points (a) to (i).
Article 4 Offences relating to a terrorist group
Each Member State shall take the necessary measures to ensure that the following acts, when committed intentionally, are punishable as a criminal offence:
- directing a terrorist group;
- participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the terrorist group.
Title III: Offences related to terrorist activities
Article 5 Public provocation to commit a terrorist offence
Member States shall take the necessary measures to ensure that the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of one of the offences listed in points (a) to (i) of Article 3(2), where such conduct directly, or indirectly such as by the glorification of terrorist acts, advocates the commission of terrorist offences thereby causing a danger that one or more such offences may be committed, is punishable as a criminal offence when committed intentionally.
Article 6 Recruitment for terrorism
Member States shall take the necessary measures to ensure that soliciting another person to commit one of the offences listed in points (a) to (i) of Article 3(2), or in Article 4 is punishable as a criminal offence when committed intentionally.
Article 7 Providing training for terrorism
Member States shall take the necessary measures to ensure that providing instruction in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of committing of or contributing to one of the offences listed in points (a) to (i) of Article 3(2), knowing that the skills provided are intended to be used for this purpose, is punishable as a criminal offence when committed intentionally.
Article 8 Receiving training for terrorism
Member States shall take the necessary measures to ensure that to receive instruction, from another person in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of committing of or contributing to the commission of one of the offences listed in points (a) to (i) of Article 3(2) is punishable as a criminal offence when committed intentionally.
Article 9 Travelling abroad for the purpose of terrorism
Member States shall take the necessary measures to ensure that travelling to a country outside the Union, directly or by transiting through one or several Member States of the Union, for the purpose of the commission of or contribution to a terrorist offence referred to in Article 3, the participation in the activities of a terrorist group with knowledge of the fact that such participation will contribute to the criminal activities of such a group as referred to in Article 4, or the providing or receiving of training for terrorism referred to in Articles 7 and 8 is punishable as a criminal offence when committed intentionally.
Article 10 Organising or otherwise facilitating travelling abroad for the purpose of terrorism
Member States shall take the necessary measures to ensure that any act of organisation or facilitation that assists any person in travelling abroad for the purpose of terrorism, as referred to in Article 9, knowing that the assistance thus rendered is for that purpose, is punishable as a criminal offence when committed intentionally.
Article 11 Terrorist financing
- Member States shall take the necessary measures to ensure that providing or collecting funds, by any means, directly or indirectly, with the intent that they should be used, or knowing that they are to be used, in full or in part, to commit or to contribute to any of the offence(s) referred to in Articles 3 to 10 (…) is punishable as a criminal offence when committed intentionally.
- Where terrorist financing as referred to in paragraph 1 concerns any of the offences laid down in Articles 3, 4 or 9, it shall not be necessary that the funds are in fact used, in full or in part, to commit or to contribute to any of these offences, nor shall it be required that the offender knows for which specific offence(s) the funds are to be used.
Article 12 Other offences related to terrorist activities
Each Member State shall take the necessary measures to ensure that offences related to terrorist activities include the following intentional acts:
- aggravated theft with a view to committing one of the offences listed in Article 3;
- extortion with a view to the perpetration of one of the offences listed in Article 3;
- drawing up false administrative documents with a view to committing one of the offences listed in points (a) to (i) of Article 3(2), point (b) of Article 4 and Article 9.
Article 13 (merged with Article 12)
Article 14 (merged with Article 12)
Title IV: General provisions relating to terrorist offences, offences related to a terrorist group and offences related to terrorist activities
Article 15 Relationship to terrorist offences
For an offence referred to in Article 4 and Title III to be punishable, it shall not be necessary that a terrorist offence be actually committed, nor shall it be necessary, insofar as the offences referred to in Articles 5 to 10 and 12 are concerned, to establish a link to another specific offence laid down in this Directive.
Article 16 Aiding or abetting, inciting and attempting
- Each Member State shall take the necessary measures to ensure that aiding or abetting an offence referred to in Articles 3 to 8, 11 and 12 is made punishable.
- Each Member State shall take the necessary measures to ensure that inciting an offence referred to in Articles 3 to 12 is made punishable.
- Each Member State shall take the necessary measures to ensure that attempting to commit an offence referred to in Articles 3, 6, 7, 9, 11 and 12, with the exception of possession as provided for in point (f) of Article 3(2) and the offence referred to in point (j) of Article 3(2), is made punishable.
Article 17 Penalties for natural persons
- Each Member State shall take the necessary measures to ensure that the offences referred to Articles 3 to 12 and 16 are punishable by effective, proportionate and dissuasive criminal penalties, which may entail surrender or extradition.
- Each Member State shall take the necessary measures to ensure that the terrorist offences referred to in Article 3 and offences referred to in Article 16, inasmuch as they relate to terrorist offences, are punishable by custodial sentences heavier than those imposable under national law for such offences in the absence of the special intent required pursuant to Article 3, save where the sentences imposable are already the maximum possible sentences under national law.
- Each Member State shall take the necessary measures to ensure that offences listed in Article 4 are punishable by custodial sentences, with a maximum sentence of not less than fifteen years for the offence referred to in point (a) of Article 4, and for the offences listed in point (b) of Article 4 a maximum sentence of not less than eight years. Where the terrorist offence referred to in point (j) of Article 3(2) is committed by a person directing a terrorist group as referred to in point (a) of Article 4, the maximum sentence shall not be less than eight years.
Article 18 Mitigating circumstances
Each Member State may take the necessary measures to ensure that the penalties referred to in Article 17 may be reduced if the offender:
- renounces terrorist activity, and
- provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, helping them to:
- prevent or mitigate the effects of the offence;
- identify or bring to justice the other offenders;
- find evidence; or
- prevent further offences referred to in Articles 3 to 12 and 16.
Article 19 Liability of legal persons
- Each Member State shall take the necessary measures to ensure that legal persons can be held liable for any of the offences referred to in Articles 3 to 12 and 16 committed for their benefit by any person, acting either individually or as part of an organ of the legal person, and having a leading position within the legal person, based on one of the following:
- a power of representation of the legal person;
- an authority to take decisions on behalf of the legal person;
- an authority to exercise control within the legal person.
- Member States shall also take the necessary measures to ensure that legal persons can be held liable where the lack of supervision or control by a person referred to in paragraph 1 has made possible the commission of any of the offences referred to in Articles 3 to 12 and 16 for the benefit of that legal person by a person under its authority.
- Liability of legal persons under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators, inciters or accessories in any of the offences referred to in Articles 3 to 12 and 16.
Article 20 Penalties for legal persons
Each Member State shall take the necessary measures to ensure that a legal person held liable pursuant to Article 19 is punishable by effective, proportionate and dissuasive penalties, which shall include criminal or non-criminal fines and may include other penalties, such as:
- exclusion from entitlement to public benefits or aid;
- temporary or permanent disqualification from the practice of commercial activities;
- placing under judicial supervision;
- a judicial winding-up order;
- temporary or permanent closure of establishments which have been used for committing the offence.
Article 21 Jurisdiction and prosecution
- Each Member State shall take the necessary measures to establish its jurisdiction over the offences referred to in Articles 3 to 12 and 16 where:
- the offence is committed in whole or in part in its territory;
- the offence is committed on board of a vessel flying its flag or an aircraft registered there;
- the offender is one of its nationals or residents;
- the offence is committed for the benefit of a legal person established in its territory;
- the offence is committed against the institutions or people of the Member State in question or against an institution, body, office or agency of the European Union and based in that Member State.
Each Member State may extend its jurisdiction if the offence is committed in the territory of a Member State.
1a. Each Member State may extend its jurisdiction over training for terrorism, as referred to in Article 7, where the offender provides training to its nationals or residents, in cases where paragraph 1 is not applicable. The Member State shall inform the Commission thereof.
- When an offence falls within the jurisdiction of more than one Member State and when any of the States concerned can validly prosecute on the basis of the same facts, the Member States concerned shall cooperate in order to decide which of them will prosecute the offenders with the aim, if possible, of centralising proceedings in a single Member State. To this end, the Member States may have recourse to Eurojust in order to facilitate cooperation between their judicial authorities and the coordination of their action.
(…) Account shall be taken of the following factors:
- the Member State shall be that in the territory of which the acts were committed,
- the Member State shall be that of which the perpetrator is a national or resident,
- the Member State shall be the Member State of origin of the victims,
- the Member State shall be that in the territory of which the perpetrator was found.
- Each Member State shall take the necessary measures also to establish its jurisdiction over the offences referred to in Articles 3 to 12 and 16 in cases where it refuses to hand over or extradite a person suspected or convicted of such an offence to another Member State or to a third country.
- Each Member State shall ensure that its jurisdiction covers cases in which any of the offences referred to in Articles 4 and 16 has been committed in whole or in part within its territory, wherever the terrorist group is based or pursues its criminal activities.
- This Article shall not exclude the exercise of jurisdiction in criminal matters as laid down by a Member State in accordance with its national legislation.
Article 21a Investigative tools
Member States shall take the necessary measures to ensure that effective investigative tools, such as those which are used in organised crime or other serious crime cases, are available to persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 3 to 12.
Article 21bis Fundamental principles relating to freedom of press and other media
Member States may establish conditions required by and in line with fundamental principles relating to freedom of the press and other media, governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability.
TITLE V: Provisions on protection, support and rights of victims of terrorism
Article 22 (…) Assistance and support to victims of terrorism
- Member States shall ensure that investigations into, or prosecution of, offences covered by this Directive are not dependent on a report or accusation made by a victim of terrorism or other person subjected to the offence, at least if the acts were committed on the territory of the Member State.
- Member States shall ensure that (…) support services addressing the specific needs of victims of terrorism are in place in accordance with Directive 2012/29/EU and that they are available for victims of terrorism immediately after a terrorist attack and as long as necessary thereafter. Such services shall be provided in addition to, or as an integrated part of general victim support services, which may call on existing entities providing specialist support.
- The support services shall have the ability to provide assistance and support to victims of terrorism in accordance with their specific needs (…). The services shall be confidential, free of charge and easily accessible to all victims of terrorism. They shall include in particular:
- emotional and psychological support, such as trauma support and counselling;
- provision of advice and information on any relevant legal, practical or financial matter
- This Directive shall apply in addition to and without prejudice to measures laid down in Directive 2012/29/EU.
Article 22a Protection of victims of terrorism
Member States shall ensure that measures are available to protect victims of terrorism and their family members, in accordance with Directive 2012/29/EU. When determining whether and to what extent they should benefit from (…) protection measures in the course of criminal proceedings, particular attention shall be paid to the risk of intimidation and retaliation and to the need to protect the dignity and physical integrity of victims of terrorism, including during questioning and when testifying.
Article 23 Rights of victims of terrorism resident in another Member State
- Member States shall ensure (…) that victims of terrorism who are residents of a Member State other than that (…) where the terrorist offence was committed have access to information regarding their (…) rights, the available support services and (…) compensation schemes in the Member State where the terrorist offence was committed. In this respect, Member States concerned shall take appropriate action to facilitate cooperation between their competent authorities or entities providing specialist support to ensure the effective access of victims to such information.
- Member States shall ensure that all victims of terrorism have access to the assistance and (…) support services as laid down in Article 22 on the territory of the Member State of their residence, even if the terrorist offence was committed in another Member State.
Title VI: Final provisions
Article 24 Replacement of Framework Decision 2002/475/JHA on combating terrorism
Framework Decision 2002/475/JHA is replaced with regard to the Member States bound by this Directive, without prejudice to the obligations of those Member States with regard to the date for transposition of that Framework Decision into national law.
With regards to the Member States bound by this Directive, references to Framework Decision 2002/475/JHA shall be construed as references to this Directive.
Article 25 Transposition
- Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [24 months after adoption]. They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
- Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 26 Reporting
- The Commission shall, by [24 months after the deadline for implementation of this Directive], submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures to comply with this Directive.
- The Commission shall, by [48 months after the deadline for implementation of this Directive], submit a report to the European Parliament and to the Council, assessing the impact and added value of this Directive on combating terrorism. The Commission shall take into account the information provided by Member States under Decision 2005/671/JHA.
Article 27 Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
Article 28 Addressees
This Directive is addressed to the Member States in accordance with the Treaties.
Done at Brussels,
For the European Parliament For the Council
The President The President
NOTES TO THE COUNCIL’S APPROACH
 Council Framework Decision of 13 June 2002 on combating terrorism (OJ L 164, 22.6.2002, p. 3).
 Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union (OJ L 386, 29.12.2006, p. 89).
 Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (OJ L 210, 6.8.2008, p. 1).
 Council decision 2005/671/JHA on the exchange of information and cooperation concerning terrorist offences (OJ L 253, 29.9.2005, p. 22).
 Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ L 180, 29.6.2013, p. 1).
 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1).
 Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams (OJ L 162, 20.6.2002, p. 1).
 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA of 15 March 2001(OJ L 315, 14.11.2012 p. 57).
 As amended by Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA (OJ L 330, 9.12.2008, p. 21).
(*) THIS PAGE UPDATE AND COMPLEMENT A FORMER PAGE DEALING WITH A ROME ROUND-TABLE ON THIS SUBJECT ON FEBRUARY 17,2016 WITH THE PARTICIPATION OF: Raffaella Pezzuto (Ministero Giustizia), Giuseppe Cataldi (Universita’ L’Orientale), Alberto Di Martino (Scuola Superiore S.Anna, Pisa ), Giuseppe Bronzini (C.Cassazione), Elena Paciotti and Emilio De Capitani (Executive Director FREE-Group).
(**) MARTINA BUSCEMI NOTES to the Council’s approach. (10-03-16)
Pending first reading position of the Parliament, a political agreement has been reached within the Council of European Union on the Proposal for a Directive of the European Parliament and the Council on combating terrorism and replacing Council Framework Decision 2002/475/JHA.It is not necessary to recall the background of this proposal, however, it’s worth highlighting, briefly, the main changes the Council has adopted, compared to the Commission proposal, which may be endorsed on the 10th of March by the Justice and home affairs Council.As for the preamble and recitals:
- A reference to others international instruments, i.e. the UN Security Council resolution 2178 (2014) and the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism, has been added àinterplay between European and International Law;
- The link between the attacks in Paris on 13 November 2015 and foreign fighters has been removed à most probably with a view to adopting a Directive that seems not to be an “impulsive” or “emergency” legislation in the aftermath of Paris attacks;
- Potential restricted measures on webpages have to respect proportionality and necessity test à see ICJ-Amnesty International-Open Society remarks related to freedom of expression;
- The criminalization of the act of travelling as such is not indispensable, as well as the conduct of aiding and abetting terrorist financing;
- It has been empathized the criminalization the exchange of cultural object of archeological, artistic, historical or scientific interest illegally removed from an area controlled by terrorist group at the time of the removal àeffectively combat the illicit trade in cultural goods;
- It has been introduced the possibility to make use of effective investigations tools, such as those which are used in combating organized crime. However, right to the protection of personal data should be respected à in line with European Court of Justice last decisions;
- More detailed provisions on the support and assistance of victims of terrorism. The compensation schemes to which victims might have access are provided by the Member State were the terrorist offence was committed àthis in line with general approach of remedies/compensations schemes under international law;
- An explicit HRs saving clause: the Directive has to be implemented in accordance with HRs, taking also into account the ECHR and International Covenant on Civil and Political Rights à in line with ICJ-Amnesty International-Open Society remarks;
- Explicit clause of “without prejudice”, in relation to obligations and responsibility of Member States underinternational humanitarian law à in line with ICJ-Amnesty International-Open Society remarks;
- The dissemination of information for scientific and academic purposes is not restricted by the Directive;
- The Draft Directive is not intended to regulate the expression of radical, polemic or controversial view in the public debate à right to dissent seems to be not affected by the application of the Draft Directive.
As for the enacting terms:
- Article 3 «terrorist offences»: illegal system and data interference (if Article 9 par.3 or 4.b and 5 Directive 2013/40/UE are applicable) are also considered acts that could amount to a terrorist offences, where committed, intentionally, and with aims laid down in article 3;
- Article 5 «public provocation to commit a terrorist offence»: also the glorification of terrorist acts to the extent that it advocates the commission of terrorist offence is punishable;
- Article 9 «travelling abroad for the purpose of terrorism»: a travel is punishable only if it’s headed to a country outside the Union – albeit by transiting in UE – and with the knowledge of the fact that such participation will contribute to the criminal activities of terrorist groups.
- Article 11 «terrorist financing»: the notion seems to be extended to cover other conducts, i.e. the financing with the knowledge that the fund are to be used to commit or, even, to contribute to any terroristic acts. It shall not be necessary that the funds are in fact used in this sense, nor shall it be required that the offender knows for which specific offence the funds are to be used;
- Article 21a «investigative tools»: new provision on effective investigative tools used in organized crime or other serious crime;
- Article 21bis «fundamental principles relating to freedom of press and other media»: new article.
In relation to the joint submission by Amnesty International, ICJ and Open Society to the European Commission Proposal:
- The alleged failure to provide sufficient guarantees of HRs seems to be narrower, given the fact that an explicit HRs saving clause has been introduced, although in the preamble, hence not in the operative part (see recital n. 19). The same goes for the reference to humanitarian law obligations (see recital n. 19a);
- Terrorist offences, ancillary offences and definition of terrorist groups are still, to certain extent, insufficiently precise and vs. the principle of legality;
- Lack of impact assessment;
- Lack of emphasizes of the procedural rights of suspects and accused persons in criminal proceeding;
- The Directive still lacks specific articles which clearly states that (i) its application should be in conformity with HRs obligations incumbent upon Member States; and that (ii) nothing in the Directive should be construed to affect in any way other rights, obligations and responsibilities Member States and individuals have under international law, including humanitarian law and international criminal law.
- The offence of participating in the activities of a terrorist group is still not confined to contributions that have an actual effect on and close proximity to the commission of a principal criminal offence.
- The reference to article 4 should be omitted from article 9.
- The offence of travelling abroad for the purpose of terrorism should clarify that the travel needs a sufficiently connection with the commission of an act of terrorism, or a real and foreseeable risk that the principal conduct would in fact take place.