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EU and Member States' Policies and Laws on Persons Suspected Of DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS’ RIGHTS AND CONSTITUTIONAL AFFAIRS CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS EU and Member States’ policies and laws on persons suspected of terrorism- related crimes STUDY Abstract This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee), presents an overview of the legal and policy framework in the EU and 10 select EU Member States on persons suspected of terrorism-related crimes. The study analyses how Member States define suspects of terrorism- related crimes, what measures are available to state authorities to prevent and investigate such crimes and how information on suspects of terrorism-related crimes is exchanged between Member States. The comparative analysis between the 10 Member States subject to this study, in combination with the examination of relevant EU policy and legislation, leads to the development of key conclusions and recommendations. PE 596.832 EN 1 ABOUT THE PUBLICATION This research paper was requested by the European Parliament's Committee on Civil Liberties, Justice and Home Affairs and was commissioned, overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs. Policy Departments provide independent expertise, both in-house and externally, to support European Parliament committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU external and internal policies. To contact the Policy Department for Citizens’ Rights and Constitutional Affairs or to subscribe to its newsletter please write to: [email protected] Research Administrator responsible Ioannis PAPAGEORGIOU Policy Department C: Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] AUTHOR(S) Mirja GUTHEIL, Optimity Advisors Quentin LIGER, Optimity Advisors Carolin MÖLLER, Optimity Advisors James EAGER, Optimity Advisors Max HENLEY, Optimity Advisors Yemi OVIOSU, Optimity Advisors With the support of Professor Piet EECKHOUT, Professor of EU Law at University College London (UCL) and Dean at UCL’s Faculty of Laws; Dr Cian MURPHY, Senior Lecturer in Public International Law at the University of Bristol; Professor Lorena BACHMAIER, Professor of Law at Complutense University, Madrid; Professor Benedetta GALGANI, Professor of Law at the University of Pisa; Mariana DATES, Optimity Advisors and Aurélie HEETMAN, Optimity Advisors. LINGUISTIC VERSIONS Original: EN Manuscript completed in December 2017 © European Union, 2017 This document is available on the Internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER The opinions expressed in this document are the sole responsibility of the author(s) and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is given prior notice and sent a copy. CONTENTS LIST OF ABBREVIATIONS 5 LIST OF TEXT BOXES 7 LIST OF FIGURES 7 EXECUTIVE SUMMARY 10 1. INTRODUCTION AND METHODOLOGY 13 1.1. Structure of the report 13 1.2. Scope of the study 14 1.3. Study methodology 15 2. EU LEGAL FRAMEWORK ON COMBATING TERRORISM 17 2.1. EU competence on terrorism 17 2.2. Definition of terrorism 18 2.3. EU strategy on counter-terrorism 19 2.4. Relevant legislation 20 2.4.1. EU legislation on terrorism 20 2.4.2. The fight on terrorism and fundamental rights 22 2.4.3. The Suspects’ Rights Package 23 3. TERRORISM IN THE EU 25 3.1. Types of terrorism 25 3.2. Evolution of terrorist threats in the EU 25 3.3. Combating terrorist threats 30 4. THE RIGHTS GRANTED TO SUSPECTS OF TERRORISM- RELATED CRIMES 35 4.1. Criminalisation of terrorism-related offences 36 4.1.1. Criminalisation of travelling to conflict zones 36 4.1.2. Criminalisation of incitement to commit terror 37 4.1.3. Criminalisation for preparatory offences 37 4.2. Rights granted to terror suspects 38 4.2.1. Defining a suspect in terrorism-related crimes 38 4.2.2. Different degrees of suspicion and the rights of terrorism suspects 39 4.2.3. State powers in relation to suspects of terrorism-related crimes 40 4.3. Summary of findings 48 5. INFORMATION SHARING TOOLS AMONG EU MEMBER STATES 50 5.1. Formal and informal EU information sharing mechanisms 51 5.1.1. Formal information exchange 52 3 Policy Department C: Citizens’ Rights and Constitutional Affairs 5.1.2. Informal information exchange 54 5.2. Information exchange tools at Member State level 55 5.3. Conclusion 56 6. CONCLUSIONS AND RECOMMENDATIONS 58 APPENDIX 1: EU COUNTRY REPORTS 62 6.1. Belgium 63 6.2. France 74 6.3. Germany 85 6.4. Greece 95 6.5. Italy 101 6.6. Netherlands 111 6.7. Poland 119 6.8. Spain 127 6.9. Sweden 135 6.10.United Kingdom 142 APPENDIX 2: LIST OF INTERVIEWS 152 APPENDIX 2: BIBLIOGRAPHY 155 4 EU and Member States’ policies and laws on persons suspected of terrorism-related crimes LIST OF ABBREVIATIONS 9/11 Terror attacks on the 11th of September 2001 in the United States of America ALF Animal Liberation Front CCC Cellules Communistes Combattantes, Belgium CJEU Court of Justice of the European Union CNCDH Commission nationale consultative des droits de l’homme CoE Council of Europe CTG Counter Terrorism Group ECTC European Counter Terrorism Centre EDPS European Data Protection Supervisor EIS Europol Information System ELF Earth Liberation Front ETA Euskadi Ta Askatasuna, Spain EU European Union G6 Group of 6 (Germany, France, Italy, Spain, Poland, UK) GTD Global Terrorism Database ILOs International Liaison Officers IRA Irish Republican Army ISIL Islamic State of Iraq and the Levant JHA Justice and Home Affairs MS Member States N17 November 17 Revolutionary Organisation, Greece 5 Policy Department C: Citizens’ Rights and Constitutional Affairs NATO North Atlantic Treaty Organisation NSU National Socialist Underground, Germany OCAM Organe de Coordination et d’Analyse de la Menace, Belgium PWGT Police Working Group on Terrorism SIENA Secure Information Exchange Network Application START National Consortium for the Study of Terrorism and Responses TE-SA EU Terrorism Situation and Trend Report, Europol TEU Treaty of the European Union TFEU Treaty of the Functioning of the European Union 6 EU and Member States’ policies and laws on persons suspected of terrorism-related crimes LIST OF TEXT BOXES BOX 1: Core elements of the EU counter-terrorism strategy. 20 BOX 2: EU legislation relevant for combating terrorism. 21 BOX 3: Historic non-religious terror threats against EU Member States. 27 BOX 4: Trends in terrorist attack methods: 1970-2016. 29 BOX 5: Available data on numbers of suspects of terrorism-related crimes. 33 BOX 6: France’s State of Emergency. 43 BOX 7: Spain’s Incommunicado Detention. 48 BOX 8: Overview of the areas to be covered by the country reports. 62 BOX 9: Examples of secular terrorist groups active in Belgium. 63 BOX 10: Most prominent terrorist attacks in Belgium: 2010-2017. 65 LIST OF FIGURES FIGURE 1: Terrorist attacks, fatalities and injuries by decade: 1970-2016 in the 10 Member States examined in this study. 28 FIGURE 2: Number of terrorist attacks by country, by decade: 1970-2016. 29 FIGURE 3: Arrests for terrorism-related crimes by type of terrorism: 2014-2016. 31 FIGURE 4: Arrests for terrorism-related crimes by country: 2014-2016. 31 7 Policy Department C: Citizens’ Rights and Constitutional Affairs FIGURE 5: Concluded court proceedings for terrorism-related crimes by country: 2014-2016. 32 FIGURE 6: Concluded court proceedings for terrorism-related crimes by type of terrorism: 2014- 2016. 34 FIGURE 7: Terrorist attacks in Belgium: Number and resulting injuries / fatalities, pre- and post- Arab Spring. 65 FIGURE 8: Number of attacks per decade: Belgium, 1970-2016. 72 FIGURE 9: Overview of German anti-terrorism legislation. 88 FIGURE 10: Number of terrorist attacks in Germany. 92 FIGURE 11: Overview of the terrorism-related offences in Germany. 93 FIGURE 12: Overview of Greek anti-terrorism legislation. 96 FIGURE 13: Number of terrorist attacks in Greece. 99 FIGURE 14: Overview of the terrorism-related offences in Greece. 99 FIGURE 15: Overview of Italian anti-terrorism legislation. 101 FIGURE 16: Number of terrorist attacks in Italy. 109 FIGURE 17: Overview of the terrorism-related offences in Italy. 109 FIGURE 18: Number of terrorist attacks in Netherlands. 117 FIGURE 19: Overview of the terrorism-related offences in The Netherlands. 117 8 EU and Member States’ policies and laws on persons suspected of terrorism-related crimes FIGURE 20: Number of terrorist attacks in Spain. 133 FIGURE 21: Overview of the terrorism-related offences in Spain. 133 FIGURE 22: Overview of Sweden anti-terrorism legislation. 136 FIGURE 23: Number of terrorist attacks in Sweden. 140 FIGURE 24: Overview of the terrorism-related offences in 2015 and 2016. 140 FIGURE 25: Overview of UK anti-terrorism legislation. 143 FIGURE 26: Number of terrorist attacks in the UK. 148 FIGURE 27: Overview of the terrorism-related offences in the UK. 150 LIST OF TABLES TABLE 1: Rationale for 10 selected EU Member States. 15 TABLE 2: Procedural Rights of suspects of crime. 23 TABLE 3: Three dimensions of information exchange. 50 TABLE 4: Information exchange and rights of suspects. 51 TABLE 5: Informal and formal information exchange mechanisms. 52 TABLE 6: Appeal of the Polish Ombudsman’s to the President on the anti-terrorist law. 122 TABLE 7: List of interviews. 152 9 Policy Department C: Citizens’ Rights and Constitutional Affairs EXECUTIVE SUMMARY As a result of a series of terrorist attacks in EU Member States in recent years, both the European Union (EU) and its Member States have enacted or revised legislation to respond to the terrorism threat.
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