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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 terrorismrelated 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 LIST OF TEXT BOXES
57

13

13 14 15

17

17 18 19 20

1. INTRODUCTION AND METHODOLOGY

1.1. Structure of the report 1.2. Scope of the study 1.3. Study methodology

2. EU LEGAL FRAMEWORK ON COMBATING TERRORISM

2.1. EU competence on terrorism 2.2. Definition of terrorism 2.3. EU strategy on counter-terrorism 2.4. Relevant legislation

22 23
2.4.2. The fight on terrorism and fundamental rights

2.4.3. The Suspects’ Rights Package

3. TERRORISM IN THE EU

3.1. Types of terrorism

25

25 25 30
3.2. Evolution of terrorist threats in the EU 3.3. Combating terrorist threats

4. THE RIGHTS GRANTED TO SUSPECTS OF TERRORISM- RELATED

4.1.1. Criminalisation of travelling to conflict zones 4.1.2. Criminalisation of incitement to commit terror 4.1.3. Criminalisation for preparatory offences

4.2. Rights granted to terror suspects

36 37 37

38

4.2.1. Defining a suspect in terrorism-related crimes 4.2.2. Different degrees of suspicion and the rights of terrorism suspects 4.2.3. State powers in relation to suspects of terrorism-related crimes

4.3. Summary of findings

38 39 40

48

5. INFORMATION SHARING TOOLS AMONG EU MEMBER STATES

5.1. Formal and informal EU information sharing mechanisms

5.1.1. Formal information exchange

50

51

52

3

Policy Department C: Citizens’ Rights and Constitutional Affairs

5.3. Conclusion

6. CONCLUSIONS AND RECOMMENDATIONS APPENDIX 1: EU COUNTRY REPORTS

6.1. Belgium
56

58 62

63

111 119 127 135 142

152 155

6.6. Netherlands 6.7. Poland 6.8. Spain 6.9. Sweden 6.10.United Kingdom

APPENDIX 2: LIST OF INTERVIEWS APPENDIX 2: BIBLIOGRAPHY

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 TEU

EU Terrorism Situation and Trend Report, Europol 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 27
29 33 43 48 62 63 65

BOX 3:

Historic non-religious terror threats against EU Member States.

BOX 4:

Trends in terrorist attack methods: 1970-2016.

BOX 5:

Available data on numbers of suspects of terrorism-related crimes.

BOX 6:

France’s State of Emergency.

BOX 7:

Spain’s Incommunicado Detention.

BOX 8:

Overview of the areas to be covered by the country reports.

BOX 9:

Examples of secular terrorist groups active in Belgium.

BOX 10:

Most prominent terrorist attacks in Belgium: 2010-2017.

LIST OF FIGURES

FIGURE 1:

Terrorist attacks, fatalities and injuries by decade: 1970-2016 in the 10 Member States examined in this study.

28 29 31 31

FIGURE 2:

Number of terrorist attacks by country, by decade: 1970-2016.

FIGURE 3:

Arrests for terrorism-related crimes by type of terrorism: 2014-2016.

FIGURE 4:

Arrests for terrorism-related crimes by country: 2014-2016.

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 postArab Spring.

65

FIGURE 8:

Number of attacks per decade: Belgium, 1970-2016.

FIGURE 9:

72

Overview of German anti-terrorism legislation.

FIGURE 10:

88

Number of terrorist attacks in Germany.

FIGURE 11:

92

Overview of the terrorism-related offences in Germany.

FIGURE 12:

93

Overview of Greek anti-terrorism legislation.

FIGURE 13:

96

Number of terrorist attacks in Greece.

FIGURE 14:

99

Overview of the terrorism-related offences in Greece.

FIGURE 15:

99

Overview of Italian anti-terrorism legislation.

FIGURE 16:

101 109 109 117 117

Number of terrorist attacks in Italy.

FIGURE 17:

Overview of the terrorism-related offences in Italy.

FIGURE 18:

Number of terrorist attacks in Netherlands.

FIGURE 19:

Overview of the terrorism-related offences in The Netherlands.

8

EU and Member States’ policies and laws on persons suspected of terrorism-related crimes

FIGURE 20:

Number of terrorist attacks in Spain.

FIGURE 21:

133 133 136 140 140 143 148 150

Overview of the terrorism-related offences in Spain.

FIGURE 22:

Overview of Sweden anti-terrorism legislation.

FIGURE 23:

Number of terrorist attacks in Sweden.

FIGURE 24:

Overview of the terrorism-related offences in 2015 and 2016.

FIGURE 25:

Overview of UK anti-terrorism legislation.

FIGURE 26:

Number of terrorist attacks in the UK.

FIGURE 27:

Overview of the terrorism-related offences in the UK.

LIST OF TABLES

TABLE 1:

Rationale for 10 selected EU Member States.

15 23

TABLE 2:

Procedural Rights of suspects of crime.

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.

122 152

TABLE 7:

List of interviews.

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. Such legislation aims, in particular, to deal with the phenomenon of

“foreign terrorist fighters” and includes measures to enhance prosecutorial powers, expand

the scope of measures for extradition and the revocation of travel documents, augment intelligence powers for surveillance, and to criminalise travel to foreign conflict zones. These measures refer, to a large extent, to substantive criminal law. They also introduce a number of measures of a procedural nature and increase coordination efforts in this area to meet these new challenges.

This study analyses these developments and provides an overview of the legal and policy framework in the EU and in 10 EU Member States on persons suspected of terrorism-related crimes. It looks into 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. The study’s key findings are:

EU legislation

The competence for tackling terrorism is shared between Member States and the

EU. On the one hand, Article 3 (2) TEU establishes that the Union shall offer its citizens an area of freedom, security and justice by preventing and combating crime. The TFEU specifies that the EU has competence in the field of criminal law. On the other hand, Article 4 (2) TEU stipulates that the Union shall respect the essential functions of its Member States, which includes safeguarding national security. National security in particular remains the sole responsibility of each Member State. When framing terrorism as a matter of national security, therefore, Member States do have – and do use – the competence to act outside the scope

of EU law. Furthermore, the EU legal framework on terror suspects is a patchwork of different pieces of secondary legislation including legislation that is either directly

targeted at the fight against terrorism or legislation that addresses crime and suspects thereof in general terms.

The key trends and types of terrorism

There is a changing pattern of terrorism in many EU countries. In the 1970s and 80s most Member State authorities were concerned about terrorism from left-wing/anarchist (e.g. Italian Red Brigades, the Greek 17t November Revolutionary Organisation etc.), rightwing/fascist (e.g. Ordine Nuovo in Italy and Spanish New Force) and separatist groups (e.g. Irish Republican Army and the Basque Euskadi Ta Askatasuna). In recent years, some of these forms of terrorism do still exist (e.g. Nationalsozialistischer Untergrund (NSU) in Germany) but Member States have become more concerned about the threat deriving from jihadist terrorism due to its international nature and multiple attacks that have been carried out in Europe.

The increasing focus on jihadist terrorism by Member States is illustrated by statistics on a high number of suspects, criminal proceedings and arrests in regard to jihadist terrorism as compared to a relatively small number from other forms of terrorism such as left-wing, rightwing and separatist terrorism.

10

EU and Member States’ policies and laws on persons suspected of terrorism-related crimes

While acknowledging its focus on preventing, detecting, investigating and prosecuting jihadist terrorism, it is interesting to note that, across the 10 Member States examined, the total numbers of, and fatalities and injuries from, terrorist attacks have decreased over the period 1970-2016. However, the findings are more complex with different trends emerging across the Member States examined. For instance, although the relative potency of the terrorist attacks in the most recent time period (2010-2016) is higher than the equivalent figure in the 1990s and 2000s, it is not higher than the equivalent figure in the 1970s and 1980s.

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  • Dziadok Mikalai 1'St Year Student

    Dziadok Mikalai 1'St Year Student

    EUROPEAN HUMANITIES UNIVERSITY Program «World Politics and economics» Dziadok Mikalai 1'st year student Essay Written assignment Course «International relations and governances» Course instructor Andrey Stiapanau Vilnius, 2016 The Troubles (Northern Ireland conflict 1969-1998) Plan Introduction 1. General outline of a conflict. 2. Approach, theory, level of analysis (providing framework). Providing the hypothesis 3. Major actors involved, definition of their priorities, preferences and interests. 4. Origins of the conflict (historical perspective), major actions timeline 5. Models of conflicts, explanations of its reasons 6. Proving the hypothesis 7. Conclusion Bibliography Introduction Northern Ireland conflict, called “the Troubles” was the most durable conflict in the Europe since WW2. Before War in Donbass (2014-present), which lead to 9,371 death up to June 3, 20161 it also can be called the bloodiest conflict, but unfortunately The Donbass War snatched from The Troubles “the victory palm” of this dreadful competition. The importance of this issue, however, is still essential and vital because of challenges Europe experience now. Both proxy war on Donbass and recent terrorist attacks had strained significantly the political atmosphere in Europe, showing that Europe is not safe anymore. In this conditions, it is necessary for us to try to assume, how far this insecurity and tensions might go and will the circumstances and the challenges of a international relations ignite the conflict in Northern Ireland again. It also makes sense for us to recognize that the Troubles was also a proxy war to a certain degree 23 Sources, used in this essay are mostly mass-media articles, human rights observers’ and international organizations reports, and surveys made by political scientists on this issue.