Prevention is better than cure: a comprehensive evaluation of the Dutch Criminal Investigation of Terrorist Crimes Act.
Name : Jelle Zoutewelle ANR : 575064
SV : prof.mr.dr. S. (Stavros) Zouridis
Words : 25130 Index
Index ...... 2 Abstract ...... 4 Chapter 1: Problem statement ...... 5 1.1 Problem analysis ...... 5 1.2 Scientific appeal...... 6 1.3 Sociopolitical relevance ...... 7 1.4 Common findings related to terrorism and counterterrorism measures ...... 7 1.5 Objective and research questions ...... 8 Chapter 2: Theoretical discussion ...... 9 2.1 Problematic aspects regarding the evaluation of counterterrorism measures ...... 9 2.2 Evaluation methods ...... 9 2.2.1 The goal achievement method ...... 9 2.2.2 The policy realms framework for determining the degree of policy success ...... 10 2.3 Conceptual model ...... 14 2.4 Operationalization ...... 15 Chapter 3: Methodology ...... 17 3.1 Research method, research design and data collection method ...... 17 3.2 Validity and reliability ...... 18 Chapter 4 The Criminal Investigation of Terrorist Crimes Act: explanation and application of the methods...... 19 4.1 The Dutch Criminal Investigation of Terrorist Crimes Act ...... 19 4.1.1 Dutch legal trends regarding terrorism ...... 19 4.1.2 The Criminal Investigation of Terrorist Crimes Act and its practical implications ...... 20 4.2 Application of the methods: process realm ...... 22 4.2.1 Consultative and legislative process ...... 22 4.2.2 Governmental objectives and means ...... 30 4.2.3 Perceived legitimacy of the consultative and legislative process ...... 31 4.3 Application of the methods: program realm ...... 32 4.3.1 Accomplishment of objectives ...... 33 4.3.2 Implementation aspects ...... 35 4.3.3 Efficiency aspects ...... 36
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4.4Application of the methods: political realm ...... 37 4.4.1 Consequences of the act for the governmental reputation ...... 37 Chapter 5 Analysis: determining the degree of policy success ...... 42 5.1 Determination of process success ...... 42 5.1.1 Strength and duration of the coalition of proponents ...... 42 5.1.2 Number and size of adjustments to ex ante determined governmental objectives and means ...... 45 5.1.3 The seriousness and duration of challenges to the legitimacy in the formation of choices.45 5.2 Determination of program success ...... 45 5.2.1 Degree to which the ex ante determined policy output target level is achieved in time .... 45 5.2.2 Degree to which the implementation is in line with objectives ...... 47 5.2.3 Degree to which the efficiency criteria of actors involved are met ...... 47 5.3 Determination of political success ...... 48 5.3.1 Degree to which the positive consequences of the policy for the electoral prospects and reputation of government and leaders outweigh the negative consequences ...... 48 5.4 Determination of policy success: summarized results ...... 49 Chapter 6 Conclusion ...... 52 SV : prof.mr.dr. S. (Stavros) Zouridis ...... 1 Index ...... 2 Abstract ...... 4 Chapter 1: Problem statement ...... 5 Chapter 2: Theoretical discussion ...... 9 Chapter 3: Methodology ...... 17 3.1 Research method, research design and data collection method ...... 17 3.2 Validity and reliability ...... 18 Chapter 4 The Criminal Investigation of Terrorist Crimes Act: explanation and application of the methods...... 19 Chapter 5 Analysis: determining the degree of policy success ...... 42 Chapter 6 Conclusion ...... 52 Literature ...... 55 Groen, J. and Kranenberg, A. (January 18, 2007). Terreurprof gaat politici de megafoon afraden. De Volkskrant. (https://www.volkskrant.nl/binnenland/terreurprof-gaat-politici-de-megafoon- afraden~a833189/)...... 57 Melenhorst, L. (March 14, 2017). Invloed media op wetgeving is beperkt. Universiteit Leiden. (https://www.universiteitleiden.nl/nieuws/2017/03/%E2%80%98invloed-media-op-wetgeving-is- beperkt%E2%80%99)...... 58
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Nauta, B., Moolenaar, D.E.G. and van Tulder, F.P. (2011). Kosten van criminaliteit, In: Criminaliteit en rechtshandhaving 2010 ontwikkelingen en samenhangen. Den Haag, Boom Juridische Uitgevers: p. 241-270...... 58 Parlement en Politiek. Kabinet-Balkenende II (2003-2006). ( https://www.parlement.com/id/vhnnmt7jpazy/kabinet_balkenende_ii_2003_2006). Consulted on July 18, 2017...... 59 Van Gunsteren, H. (November 13, 2004). De gevaren van de veiligheidsstaat. De Volkskrant. (https://www.volkskrant.nl/archief/de-gevaren-van-de-veiligheidsstaat~a680988/)...... 60 Van Westerloo, G. (April 26, 2006). Het hoogste woord. NRC. (https://www.nrc.nl/nieuws/2006/04/29/het-hoogste-woord-11128317-a103315)...... 60 Volkskrant. (October 30, 2005). Nederlander tevreden over aanpak terrorisme. (https://www.volkskrant.nl/binnenland/nederlander-tevreden-over-aanpak-terroristen~a675176/)...... 60 Appendix I ...... 61 Appendix II ...... 65 Time plan of the research project ...... 65
Abstract
Terrorism is a present-day topic that receives extensive media coverage and governmental and scholarly attention. Preventive measures are widely used by governments which may lead to tensions with the rule of law. Therefore, it is important to evaluate them. In practice, evaluation methods of counterterrorism measures are often largely based on instrumental goal achievement. Furthermore, scholars have applied evaluation methods to counterterrorism measures only limitedly. This article offers a comprehensive evaluation of a major Dutch counterterrorism law, the Criminal Investigation of Terrorist Crimes Act. The article uses the three policy realms (process, program and politics) of McConnell in addition to the traditional instrumentally focused goal achievement method.
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The aim is to examine whether the application of his policy realms framework to the act provides a different picture about the degree of policy success than the instrumentally (or program) focused governmental WODC evaluation. The broader approach resulted in a sort of ‘compensation’ of the lack of program success by the degree of process and political success which shows the possible consequences of a broader evaluative focus for the eventual evaluation results of (preventively orientated) policies. The Netherlands was chosen, because it experienced only one terrorist attack (the murder on Theo van Gogh in 2004) and the instrumentally evaluated act has been one of the major changes to the Dutch criminal law.
Chapter 1: Problem statement
1.1 Problem analysis Terrorism is a phenomenon that receives extensive media coverage and governmental and scholarly attention (Bakker and De Graaf, 2014: p. 7 and Sandler, 2005: p. 76). Sandler (2005: p. 75) defines terrorism as ‘the premeditated use or threat of use of violence by individuals or subnational groups to obtain a political or social objective through intimidation of a large audience beyond that of the immediate victims’. Although threat analyses are usually based on confidential information from intelligence and security services, the threat of terrorism is realistic and not strongly disputed
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(Borgers and Sliedregt, 2009: p. 187). The multiple recent terrorist attacks, which caused dozens of deaths in main (European) cities like Brussels, Berlin, London, Paris and Nice, further increased the attention given to terrorism by the media and political actors (USBO, 2016: p. 62). Terrorism is a present-day topic that becomes apparent out of the terrorist attacks that were committed in (among others) Barcelona, Manchester, Sint-Petersburg and Istanbul during the period of this study. Preventing terrorism and increasing knowledge about terrorism is seen as being of crucial importance, because of possible severe consequences like casualties, big material and environmental damage and, especially, the development of fear and distrust among citizens (Bakker et al, 2014: p. 2, De Goede, 2008: p. 161, NCTV, 2016, Stern and Wiener, 2011: p. 285, Strafblad, 2016: p. 277 and USBO, 2016: p. 74-75 and 190). The methods terrorists use mostly include bombs, guns and aircrafts. However, although it is far more complicated to obtain possibilities for the use of weapons of mass destruction (chemical, biological or nuclear) and less likely, there is certainly no lack of motivation among terrorists in attempting to obtain these weapons that possibly cause much greater harm (Rosendorff and Sandler, 2005: p. 171 and USBO, 2016: p. 57).
Societal problems in general might have a consensus regarding the desirability of governmental interventions, but at the same time are lacking knowledge regarding the best way to respond. This is arguably the case with a wicked problem like terrorism (Bekkers, 2012: p. 122). The sources (individuals or groups that form a threat) and causes of terrorism (reasons for individuals to commit violent terrorist acts) are highly uncertain and very hard to assess, developments are unpredictable and preventive measures are widely used by governments. Terrorism risks are hard to predict in a precise manner, because the developments depend on many geopolitical, economic, technological and demographic factors that are hard to identify (USBO, 2016: p. 32). As a consequence, it is difficult to map the costs and benefits of counterterrorism measures and to express or quantify them. Evaluation methods of (counterterrorism) policy measures are often largely based on instrumental goal achievement with a focus on achieving the ex ante formulated policy output levels (Borgers et al, 2009: p. 185, Marsh and McConnell, 2010: p. 565 and Nordhaus, 2012: p. 197). An additional observation is that scholars have insufficiently applied evaluation methods to counterterrorism measures according to the literature (Borgers et al, 2009: p. 195, Stern et al, 2011: p. 315 and Steward and Mueller, 2013: p. 894). This study consists of a case study of the Dutch ‘Act on the extension of the powers of the scope for investigation of terrorist crimes’ (further referred to in this study as The Criminal Investigation of Terrorist Crimes Act or simply the act). The act was evaluated in a purely instrumental way by the governmental WODC (a research and documentation centre that belongs to the Dutch Ministry of Security and Justice) with a focus on policy output, implementation and efficiency aspects. This evaluation focuses on the 2007-2011 period. The WODC evaluation was referred to as confined by the Dutch Council of State (Stcrt, 2017: p. 11). In the light of the aforementioned observations, the objective of the study is to examine whether the application of a more comprehensive evaluative framework results in a different picture about the degree of policy success of the act than the WODC evaluation. In order to accomplish this, the goal achievement method will be complemented by the three policy realms of McConnell (2010): processes, programs and politics. The evaluation method that stems from the integration of the two methods will not only focus on policy output, implementation and efficiency (program aspects), but also on different aspects of the process (the involvement of stakeholders and the balancing of opportunities and risks of policy alternatives before taking a decision) and politics (the consequences of governmental choices for the electoral prospects). Regarding the program aspects, the information of the WODC
6 evaluation will be used. The study consists of four parts. The goal achievement method and the policy realms framework of McConnell (2010) will be presented in the first part. The second part provides for a description of the Criminal Investigation of Terrorist Crimes Act. Furthermore, information that is relevant for the determination of the degree of success for each realm will be rendered here. The third part consists of an assessment about the degree of success for each realm. The final part provides for a conclusion by summarising the results of the policy realms framework evaluation and by describing the similarities and differences in results between the governmental WODC evaluation and the policy realms framework evaluation. Furthermore, some concluding remarks will be made about what perspectives should be used in the evaluation of preventively orientated policies. A reason for the selection of the Netherlands is that this country has experienced only one terrorist attack (the murder on film director Theo van Gogh in 2004 who was also known for his critical attitude towards the Islam) and it would be interesting to examine and evaluate a Dutch law that is specifically designed for terrorist crimes (Institute for Economics and Peace, 2016: p. 11 and USBO, 2016: p. 50). Furthermore, the act has been one of the major changes to the Dutch criminal law and was, as mentioned above, evaluated in a purely instrumental way (Mevis, 2013: p. 305). An additional more pragmatic reason for the selection is the Dutch origin of the author. The additional knowledge about the Netherlands and the lack of language barriers is relevant for interpretating important sources like the WODC evaluation document, parliamentary papers, the explanatory memorandum and newspaper articles.
1.2 Scientific appeal Despite extensive (scholarly) attention, there is a large knowledge gap within the terrorism domain regarding the application of evaluation methods for determining the effectivity of counterterrorism measures. Scholars should construct and apply such counterterrorism evaluation methods (Borgers and Sliedregt, 2009: p. 195, Linkov, Tkachuk, Canis, Mohan and Keisler, 2012: p. 1, Stern and Wiener, 2011: p. 315, Steward and Mueller, 2013: p. 894 and USBO, 2016: p. 90 and 148). Some authors, like Stern and Wiener (2011) and Steward and Mueller (2008 and 2013), already did such an attempt. Scholars are aware of the limitations in the theoretical bases of current methods when applied to terrorism and counterterrorism measures and establish a need for innovative approaches when analyzing them (Linkov et al, 2012: p. 1). Several authors from multiple disciplines like criminal law and criminology advocate the initiation of more multidisciplinary research to tackle the aforementioned knowledge gap (Borgers et al, 2009: p. 195 and Stern et al, 2011: p. 315). This study will make a systematic effort to tackle this knowledge gap by applying the goal achievement method and the policy realms framework of McConnell (2010) to the Dutch Criminal Investigation of Terrorist Crimes Act. This will offer an evaluation that focuses on more aspects than instrumental goal achievement alone.
1.3 Sociopolitical relevance Although it is possible to question the disastrous nature of terrorism compared to some other risks, most scholars consider terrorism as a catastrophe, because of the intention of terrorism to create fear and anxiety with the aim of intimidating people in order to achieve political goals and to compel governments and international organisations to do or to abstain from doing any act (Borgers et al, 2009: p. 188). This possibly has severe consequences for the stability of democratic societies and the legal system. The aim of creating fear is also reflected in many governmental definitions of terrorism, like the one used by the European Union (Bakker and De Graaf, 2014: p. 2). Although fear is a useful survival mechanism, it can have negative consequences if the fear is not proportionate to the actual
7 threat. Regarding terrorism, this can lead to stereotyping, discrimination, ‘us versus them thinking’ and, via the media, prolonged changes of public attitudes. This can ultimately have detrimental consequences for human rights protection due to emotional, political and administrative overreactions by political institutions that often yield to popular pressure (Bakker and De Graaf, 2014: p. 3, Koopmans, 2005: p. 216-217 and Steward and Mueller, 2013: p. 895). Moreover, dictatorial regimes in particular can also create extraordinary broad legal definitions of terrorism that allow them to crack down political dissidents which causes tensions, discrimination and polarization among groups, as happened in Ethiopia (Bakker et al, 2014, p. 3). Regarding counterterrorism measures, policy makers and scholars have no single unambigious perception regarding adequate interventions (USBO, 2016: p. 33). There are only a few scientific sources that confirm or deny the effectiveness of specific counterterrorism measures (USBO, 2016: p. 149). Differences in evaluation results may stem from the utilization of different evaluation selection criteria and this study can also increase the awareness of the importance of this selection for practitioners. After all, practitioners have an important role in decision-making processes regarding the choice to continue, adjust or withdraw already implemented counterterrorism measures. Finally, the WODC evaluation was largely focused on policy output, implementation and efficiency aspects and was referred to as confined by the Dutch Council of State (Stcrt, 2017: p. 11). This study will broaden this rather unilateral focus by also paying attention to the process and political realm.
1.4 Common findings related to terrorism and counterterrorism measures In general, a key element within counterterrorism policies is a politics of preemption which is acknowledged across disciplines like criminology, criminal law and risk management (Borgers and Sliedregt, 2009: p. 171 and 187). The common assumption that, compared to the US, Europe would be inherently critical of preemptive security measures in the counterterrorism policy field (related to its cosmopolitan image), has been criticized (De Goede, 2008: p. 163 and 176). This is motivated by the measures that have been taken (formalised in the EU’s 2002 Framework Decision on Combating Terrorism) regarding criminalizing terrorist groupings, terrorism financing and facilitation, telecommunications data retention and asset freezing. The framework enables the application of preemptive security measures in Europe, although states that strongly comply to the rule of law (like the Netherlands and Germany) are very critical in applying possibilities for data retention, because of privacy issues (De Goede, 2008: p. 169 and 172, Koopmans, 2005: p. 106-108 and USBO, 2016: p. 194). Stern and Wiener (2011: p. 286) established a link between the precautionary principle and the application of counterterrorism measures in order to determine whether the US or Europe have initiated more counterterrorism measures with a precautionary nature since the 1970s. The precautionary principle basically entails the following: ‘if and when a threat of serious or irretrievable harm arises, a lack of scientific certainty should not apply as a reason not to take or to suspend preventive measures’ (Borgers et al, 2009: p. 183). According to Sandin (1999: p. 889), the precautionary principle may be divided into four dimensions which can be summarized into the following sentence: ‘If there is (1) a threat, which is (2) uncertain, then (3) some kind of action (4) is mandatory’. The threat dimension is about the potential threat, the uncertainty dimension regards the restrictions in knowledge, the action dimension is about the reaction to the threat and the command dimension regards the manner in which actions are prescribed (Sandin, 1999: p. 891). The knowledge gap regards the lack of scientific certainty that may exist when there is no evidence of a causal relationship between the inputs and the effects of measures (Peel, 2004: p. 495). Stern and Wiener (2011: p. 300) mentioned that precaution is not an all-or-nothing proposition, but the
8 adequacy of its adoption depends on the specific risk and its context. Terrorism may justify precaution, because it concerns risks of an irreversible and life-threatening character (Peel, 2004: p. 493). Stern and Wiener eventually found that regarding counterterrorism, Europe was relatively more precautionary in the 1970s, but the US and the UK have become more precautionary since 2001. Sandler (2005: p. 89) established a potential positive association between terrorism and democracy, because of factors in liberal democracies that create a favorable environment for transnational terrorist activities. For example, there exist restraints on governmental power to hold terrorist suspects or to gather information, freedom of association makes it easier to organise and crossing borders is often easier compared to autocracies. Finally, counterterrorism policies are potentially undermining to democratic institutions, their principles and processes they seek to preserve (Crenshaw, 2010).
1.5 Objective and research questions
Objective To examine whether the application of the policy realms framework of McConnell to the Dutch Criminal Investigation of Terrorist Crimes Act provides a different picture about the degree of policy success of the act than the purely instrumental framework that was used in the governmental WODC ex post evaluation of the act.
Main question Does the application of the policy realms framework of McConnell to the Dutch Criminal Investigation of Terrorist Crimes Act provide a different picture about the degree of policy success of the act than the purely instrumental governmental WODC ex post evaluation?
Sub questions What evaluation criteria are demanded by the policy realms framework of McConnell in order to determine the degree of policy success?
What policy dimensions are evaluated in the governmental WODC ex post evaluation of the Dutch Criminal Investigation of Terrorist Crimes Act and what are the results?
What are the results of the application of the policy realms framework of McConnell to the Dutch Criminal Investigation of Terrorist Crimes Act?
What are the similarities and differences in results between the purely instrumental governmental WODC ex post evaluation of the act and the application of the policy realms framework of McConnell to the act? Chapter 2: Theoretical discussion
2.1 Problematic aspects regarding the evaluation of counterterrorism measures Counterterrorism measures like the Criminal Investigation of Terrorist Crimes Act will function adequately if they are effective and if they do not or hardly have negative effects. This ideal situation will not, however, occur often in practice and it must be determined in advance which interests have to be protected and which not (Borgers and Sliedregt, 2009: p. 184). This study will provide an evaluation that focuses on more policy dimensions rather than on instrumental goal achievement alone while taking four problematic aspects regarding the evaluation of counterterrorism measures
9 into account. First, counterterrorism measures are largely aimed at reducing the risk of terrorist attacks (NCTV, 2017 and USBO, 2017: p. 54, 72, 110 and 170). It is, however, often too complicated to determine the reduction in the risk of terrorist attacks. After all, it is impossible to determine that a terrorist attack has not happened due to the implementation of counterterrorism measures (Van Gestel and De Poot, 2016: p. 15 and USBO, 2016: p. 24). Second, local and national authorities deploy a combination of instruments (preventive, repressive and curative measures) at the same time. Because of this, it is hard to determine whether a desirable effect is caused by one specific measure (NCTV, 2016: p. 5 and USBO, 2016: p. 6). Third, criminal lawyers and criminologists point to the risk that people are wrongfully subjected to far-reaching measures. There is a tension between the interest of safety versus the interest of legal protection. As a consequence, preventive criminal legislation like the broadening of investigative powers and the broadening of possibilities for pre-trial detention is often measured against human rights, especially in the West (Borgers et al, 2009: p. 173 and 181-182). Terrorists have a tactical advantage as they do not take human rights into account. They have been unrestrained in their brutality (Sandler, 2005: p. 79). Lastly, preventive security practices make unaccountable and pre-legal security decisions possible. Actors involved (bureaucrats, immigration officials and private actors like airport officials) are increasingly able to make sovereign decisions regarding the normality of persons and their behaviour (based on circumscribed risk groups, assumptions and definitions of normal behaviour) and to monitor, search, question and detain persons that are considered not normal. This possibly causes tensions with governmental values that stem from the rule of law such as accountability and legitimacy (Sandler, 2005: p. 75-78).
2.2 Evaluation methods The two evaluation methods (the goal achievement method and the policy realms framework of McConnell (2010)) that will be used to determine the degree of policy success of the Dutch Criminal Investigation of Terrorist Crimes Act, will be discussed below.
2.2.1 The goal achievement method The crux when applying the goal achievement method lays in determing the extent to which policy measures have achieved their a priori formulated objective(s) in a certain period (Bekkers, 2012: p. 275, Bovens, ’t Hart and Van Twist, 2012: p. 29, Hakvoort and Klaassen, 2013: p. 104 and Marsh and McConnell, 2010: p. 566). When setting up a certain policy, a certain target level will be determined. The target level is the benchmark of the goal achievement method (Hakvoort and Klaassen, 2013: p. 104). Target levels can be derived from technocratic processes (based on systematic tests or inquiries for example), bargaining processes that include different stakeholders with different interests or even unsystematic stab-in-the-dark activities. A mixture of standard-setting approaches is also very common (Hood, Rothstein and Baldwin, 2003: p. 25). The degree of goal accomplishment can sometimes be expressed in percentages. A good application of this method requires that the objectives are not changed during the period for which the measures are examined (Hakvoort and Klaassen, 2013: p. 104). ‘The degree to which the ex ante determined policy output target level is achieved in time’ is the way of determining the policy effectivity according to the goal achievement method. As a consequence, this will be an indicator in this study. The goal achievement method is selected for evaluating the Dutch Criminal Investigation of Terrorist Crimes Act, because the setting of standards, goals, targets and guidelines is essential in the regulation of risks like terrorism. Although safety standards are often controversial in different policy domains and geographical areas, goal setting is relevant, because it requires a consideration of important issues like the value of life
10 and acceptable levels and distributions of risks (Hood et al, 2003: p. 25). A problem of the goal achievement method are the uncertainties regarding the factual influence of the measure on the results (Hakvoort et al, 2013: p. 104). An important distinction must be made in this regard between policy output (production) and policy outcome (effect). The focus of the goal achievement method is on policy outputs and improvements and not on putative causes of improvement (Marsh et al, 2010: p. 567). It does not consider the societal effects that derived as a consequence of the measures (policy outcomes), but it only considers the results (effects) for which objectives are formulated (policy output). The eventual results are totally attributed to the implementation of the measure. Additional assumptions regarding other positive and negative explanatory factors are required when applying this method (Hakvoort et al, 2013: p. 104). After all, policy success does not only depend on an ex post evaluation of instrumental policy goal achievement, but also on a good policy design and on an adequate evaluation of the probable impact of proposed policies (McConnell, 2010: p. 347).
2.2.2 The policy realms framework for determing the degree of policy success According to Marsh and McConnell (2010: p. 565), a great deal of the evaluation literature is produced from within the government in which policy success largely depends on meeting policy objectives or on producing better policy. Because of this narrow focus and in order to complement the shortcomings of the goal achievement method, elements of the policy realms framework of McConnell (2010) will be added in order to determine the degree of policy success of the Criminal Investigation of Terrorist Crimes Act. According to McConnell (2010), attention must be paid to different policy realms when determining the degree of policy success. Some elements are excluded, because of the fact that the indicators that stem from the realms may overlap when one wants to empirically determine the degree of policy success (McConnell, 2010: p. 350). McConnell (2010) divides policy success into three realms: processes, programs and politics. The process realm concerns the identification of problems, the investigation of alternatives, consultation (or not) and decisions on the basis of pros and cons in the public interest. It is about the involvement of stakeholders and about balancing the opportunities and risks of policy alternatives before taking a decision (McConnell, 2010: p. 349-350). The program realm is about converting the statements and intentions of policies into concrete policy programs. Governmental sources like laws, public employees and public money can be involved in different ways. Politics is about the consequences of governmental choices for the electoral prospects. In general, scholars may focus more on program success and politicians may be more concerned with politics (McConnell, 2010: p. 359). Regarding policy success, the indicators that stem from the realms may have beneficial or detrimental consequences (McConnell, 2010: p. 350). The degree of policy success can be systematically determined in ‘success’, ‘resilient succes’, ‘conflicted success’, ‘precarious success’ and ‘failure’ for each realm. The degree of success may differentiate within the realms and between the realms and complete success is uncommon. Goal achievement is a reasonable tangible aspect of policy success, but its degree often depends on the perception of different political actors that are based on their values and beliefs (McConnell, 2010: p. 345-346 and 351). Therefore and according to McConnell (2010: p. 351), a policy program is perceived as a success if ‘it achieves the goals that proponents set out to achieve and attracts no criticism of any significance and/or support is virtually universal’. Success in general occurs if the government achieves the intended plans while encountering a minimum opposition. The success category will be described comprehensively for each realm for illustration purposes. The remaining ‘degree of success categories’ will be described more briefly, but they are summarized in the operationalization (see paragraph 2.4).
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The three indicators that stem from the policy realms framework regarding process success are (Marsh and McConnell, 2010: p. 571 and McConnell, 2010: p. 352):
the number and size of adjustments to ex ante determined governmental objectives and means; the seriousness and duration of challenges to the legitimacy in the formation of choices; the strength and duration of the coalition of proponents.
A process is perceived as successful for the first indicator if ex ante determined governmental objectives and means are retained. This requires the passage of legislation in which ammendments are only allowed if they facilitate the ex ante intended objectives. This process success condition can be determined by analysing the legislative process (legislative documents that describe amendments and legislative voting patterns). The second indicator is assessed as successful if the legitimacy of the policy process is universal among the actors. This requires that the policy stems from accepted legal and consultative procedures based on democratic values, deliberation and accountability (no legal and procedural challenges). This process success condition can be determined by analysing legislative documents. The existence of a long-lasting and strong political coalition is the final condition of policy process success. Furthermore, there must be an absence of serious criticism from stakeholders. This can be determined by analysing the support of ministers, relevant stakeholders, media and public opinion (Marsh et al, 2010: p. 571 and McConnell, 2010: p. 352).
The degree of program success can be determined on the basis of three indicators (Marsh et al, 2010: p. 571 and McConnell, 2010: p. 354):
the degree to which the implementation is in line with objectives; the degree to which the ex ante determined policy output target level is achieved in time; the degree to which the efficiency criteria of actors involved are met
The condition of program success is fulfilled if the policy produces the ex ante determined outcomes. This study will use the criterium of policy output instead of policy outcomes (used by McConnell, 2010), because it is often impossible to measure the outcomes of counterterrorism measures. After all, we cannot determine whether something undesirable (like a terrorist attack) did not happen as a consequence of a specific counterterrorism measure with a preventive nature. The first indicator is seen as successful if the implementation is in line with objectives. This requires a lack of serious criticism by involved governmental actors, stakeholders and the media. Success regarding the policy output target level requires that the ex ante determined policy output target level is achieved in time. This indicator is also the focus of the goal achievement method. Success in the third indicator is about the satisfaction of the efficiency criteria of the involved actors. This requires an efficient use of resources in line with ex ante determined objectives. The three program indicators can be determined by analysing internal and external program or policy evaluations, stakeholder reviews and press reports (Marsh and McConnell, 2010: p. 571 and McConnell, 2010: p. 354).
The degree of political success can be determined on the basis of one indicator (Marsh et al, 2010: p. 571 and McConnell, 2010: p. 356):
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the degree to which the positive consequences of the policy for the electoral prospects and reputation of government and leaders outweigh the negative consequences;
The political popularity of the policy is the central indicator of the political realm. Popular policies may increase the election chances of governmental actors. The indicator is assessed as successful if the electoral prospects or reputation of governments and leaders are increased by the policy. The indicator can be determined by analysing opinion polls (of the policy and the government popularity), election results and press reports (Marsh et al, 2010: p. 571 and McConnell, 2010: p. 356).
‘Resilient success’ is the second best outcome. This category allows minor opposition ammendments regarding process success. Resilient program success applies if most ex ante determined core objectives are achieved despite minor adversities and changes. Resilient political success allows a small opposition as long as this process results in compromises (McConnell, 2010: p. 353). A ‘conflicted success’ is the third category of success. Some parts of the ex ante determined objectives are achieved, but significant program reviews and/or changes were required and the policy was not as successful as intended. Grounds for these changes and program reviews may be time delays, shortfalls in resources and targets, communicative errors, considerable controversies and requirements to defend the core objectives and values of the program. Regarding the politics realm, there exists substantial opposition (stronger than expected) and proponents receive less than intended. ‘Precaurious successful’ policies are largely failed. There are minor achievements in terms of program success, but most ex ante determined objectives are not accomplished. Regarding the politics realm, there are more opponents than proponents and there exists considerable controversy. Even some proponents may be critical and a failure is likely to occur in the future. Maintaining the policy may avoid an acknowledgement of failure by proponents, but the costs outweigh the benefits. Policies that ‘fail’ do hardly achieve any ex ante determined goals and the opposition (almost) completely outweighs the proponents (McConnell, 2010: p. 355-356). Process failure consists of a failure to make the intended decision or of a failure to enact legislation. This may occur if the coalition is not sufficient and prevented from initiating the desired policy. Program failure consists of a failure to achieve the ex ante determined objectives and political failure consists of damages to reputations of policy proponents.
The eventual categorization of a policy into the three realms depends more on systematic judgements than on scientific precision, because policy success is based on both facts and interpretation (accruing from values and beliefs). The results can be different within realms and accross realms. Moreover, realizing success in one realm may be at the cost of success in another realm. Three different key patterns of realm success will be identified here. The first pattern consists of a policy that is successful on the process and unsuccessful on the program. It is possible to take the intended decisions and to let legislation pass in a legitimate way with sufficient coalition support. The program may still, however, fail in achieving the ex ante determined objectives (McConnell, 2010: p. 357). A combination of successful politics with an unsuccessful program may also occur when political processes (compromises) resulted in a program that fails to achieve its ex ante determined objectives. This may occur with complex problems or wicked problems with no clear solutions and causes. Tackling a wicked problem on the symptoms is sometimes better for maintaining or increasing electoral prospects or reputations of governments and leaders than aiming at the underlying causes. This may occur in a response to popular desires to do something (being
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decisive) despite the fact that this may be unsuccessful. This strategy may be especially tempting in the run-up to an election (Marsh and McConnell, 2010: p. 569). Successful programs in combination with unsuccesful politics is the third key pattern. Objectives that are desired by the coalition may accomplish their objectives. This may still, however, lead to negative consequences for electoral prospects or reputations of governments and leaders if the policies are not popular among the population (McConnell, 2010: p. 358). In sum, categorizing policies on the degree of success can lead to different results for different realms. The realms of McConnell (2010) are used, because they are suitable for an ex post evaluation of measures that are aimed at wicked problems (like terrorism) towards which the achievement of policy outcome levels are hard to determine. It will provide different perspectives on success in different realms in addition to a (rather narrow) focus on the achievement of ex ante formulated policy output levels (McConnell, 2010: p. 359).
2.3 Conceptual model The main indicators for determining effectivity (goal achievement method) and policy success (policy realms framework) that stem from the two methods (see paragraph 2.2), will be represented in the conceptual model below.
Number and size of adjustments to ex ante determined governmental objectives and means 14
Seriousness and duration of challenges to the Degree of legitimacy in the formation process success of choices Strength and duration of the coalition of proponents
Degree to which the implementation is in line with objectives
Degree to which the ex Degree of Degree of policy ante deter mined policy output target level is program success success achieved in time
Degree to which the efficiency criteria of actors involved are met
Degree to which the positive consequences of the policy for the electoral Degree of prospects and reputation political success of government and leaders outweigh the negative consequences
2.4 Operationalization The indicators of the two methods are provided with values (see paragraph 2.2) to make them practically usable (Verschuren en Doorewaard, 2010: p. 133 en 143).
Process Values success Indicators Process Resilient Conflicted Precarious Process failure success (++) success (+) success (0) success (-) (--) Number and Ex ante Ex ante Ex ante Governmental Termination size of determined determined determined objectives and of
15 adjustments governmental governmental objectives and means are governmental to ex ante objectives and objectives and means are largely objectives and determined means are means are partially changed or in means governmental retained largely retained. danger of objectives retained. Small However, they being largely and means changes to the turned out to changed objectives and be practically means may controversial have occured and hard to retain. Some revisions were necessary Seriousness Legitimacy of Small and no Hard and Serious and Almost absent and duration the policy lasting controversial potentially policy of challenges among the challenges to issues destructive legitimacy or to the actors is the legitimacy regarding consequences irreparable legitimacy in universal of the policy legitimacy of for the damage to the the formation the policy, legitimacy of legitimacy of of choices legitimacy the policy the policy insecure in the long-term Strength and The existence The existence The existence The coalition Building a duration of of a long- of a strong of a coalition nearly coalition is not the coalition lasting and coalition with with strong collapses possible of strong minor indications of proponents coalition disagreements disagreement, fragmentation may occur
Program Values success Indicators Program Resilient Conflicted Precarious Program success (++) success (+) success (0 success (-) failure (--) Degree to The The Mixed results Minor Implementatio which the implementatio implementatio regarding the progress n completely implementatio n is in line n objectives achievement regarding fails to be n is in line with are largely of implementatio executed with objectives achieved with implementatio n objectives according to objectives only small n objectives. achievement the objectives adjustments Some alongside successes, but permanent also failures that unexpected are and contentious contentious and hard to problems defend Degree to Achieving the Ex ante Partially Achieving Complete which the ex ex ante determined achieving the minor ex ante failure to ante determined policy output ex ante determined achieve the ex determined policy output target level determined policy output ante
16 policy output target level in largely policy output target levels determined target level is time achieved in target level. which is policy output achieved in time with The existence overshadowed target level time minor of undesirable by deficiencies or results that controversy, delays create delay and significant manifest controversy or examples of the existence failures of considerable delay Degree to Satisfying the Efficiency Efficiency Some small The efficiency which the efficiency criteria are criteria are successes criteria efficiency criteria of the largely met, partially met. are clearly not criteria of different close enough The existence met actors actors to continue of examples of involved are with fulfilling failures to met the criteria achieve them
Political Values success Indicators Political Resilient Conflicted Precarious Political failure success (++) success (+) success (0) success (-) (--) Degree to The electoral The electoral The policy Marginal Only which the prospects or prospects and causes equally beneficial detrimental positive reputation of reputation of strong support consequences consequences consequences government government and for electoral for the of the policy and leaders and leaders opposition. prospects and electoral for the are increased are generally Positive and reputation of prospects or electoral increased. negative government reputation of prospects and Only small consequences and leaders, government reputation of reversals for the but the and leaders government electoral consequences and leaders prospects and are largely outweigh the reputation of detrimental negative government consequences and leaders
Chapter 3: Methodology
3.1 Research method, research design and data collection method The research method of this study is an instrumental single case study. The case study, in which the Dutch Criminal Investigation of Terrorist Crimes Act serves as a case, is suitable to carefully examine whether the application of the policy realms framework of McConnell provides a different picture about the degree of policy success of the act than the purely instrumental governmental WODC ex post evaluation. Hence, the act has already been evaluated in a purely instrumental way by the
17
WODC and the act plays a supportive role in this study. A second reason for selecting the case study is its suitability for a post-facto study. This is important as the act has been implemented for over ten years. Finally, a case study approach enables the possibility to capture a diversity of detailed characteristics, patterns and latent elements about the act (a holistic picture with a focus on multiple variables) which is something that other research methods might overlook (Berg and Lune, 2012: p. 326-327 and 342). These important considerations resulted in the selection of the instrumental case study as a research method. The research design follows the canvas of a descriptive case study (Berg and Lune, 2012: p. 338). The policy realm framework of McConnell forms the general framework to follow throughout this study. This theoretical orientation was selected before the eventual research question was constructed and before the unit of analysis was selected. The data collection and analysis method is a content analysis that was based on documents that are relevant to the act. Marsh and McConnell (2010) offered useful suggestions regarding the type of sources that could be used to determine the degree of policy success per indicator. In order to establish the degree of process success, the legislative process should be analysed by consulting legislative documents (like parliamentary papers) that describe amendments and legislative voting patterns. Regarding the program indicators, internal and external policy evaluation documents (like the WODC evaluation) could be consulted in order to gather information about policy targets, policy implementation and policy efficiency. The three main data-gathering strategies in this study were partly deduced from these suggestions. First, the site of the Dutch First Chamber (www.eerstekamer.nl) was consulted to gather necessary information for determining the degree of process success. This site offered a clear overview of all parliamentary papers (for example, the explanatory memorandum, documents about parliamentary debates that were held and answers from the minister) that belong to the file of the act. The second strategy concerns the utilization of the WODC evaluation document for determining the degree of program success. This document proved useful as it offered relevant information about the application of the act in practice (for example, numbers regarding the application of specific measures and practical experiences of actors in the field). Moreover, it also referred to another study (Van der Woude, 2010) that proved relevant for determining the degree of process and political success. The third strategy was applied to gather the data that was necessary to determine the degree of political success. Key words that were deduced from the political indicator were used to find relevant news paper’ articles. Examples of key words are ‘name of the newspaper/public opinion terrorist act’ and ‘name of the newspaper/Dutch population finds terrorism’. Interviews with actors in the field of counterterrorism were not held, because of the confidentiality aspect of information about the application of the act. This makes the collection of additional information compared to publicly available policy documents unlikely (AIVD, 2017 and Borgers and Sliedregt, 2009: p. 187). Furthermore, the act has been implemented for over ten years and interviews were already held during the WODC evaluation of the act for the program indicators.
3.2 Validity and reliability The internal validity is stimulated in four ways. First, different sources were consulted to determine the degree of success for the process and political realms. Regarding the process indicator, the different perspectives of the involved actors were deduced from multiple sources like parliamentary papers, formal advisory documents of the different consultative actors and documents that contain an interpretation of these documents by the cabinet and by Van der Woude (2010). Two different data sources were used for the political indicator. First, the results of the two biggest Dutch opinion polls at the time (‘Politieke Barometer’ and ‘De Hond’) were examined. The second source consisted
18 of relevant press reports of five major national newspapers about the act. The second way to improve the internal validity was to verify the goal achievement method with multiple sources of different scholars. Relatedly, two related articles of the policy realms framework of McConnell were consulted to gain a deeper understanding of this framework which was necessary to adequately deduce the operationalization from the framework. The third way to improve the internal validity is about not ignoring deviant results (for example the different results of the opinion polls and expert opinions), but about mentioning, emphasizing and incorporating them in the eventual results. Fourth, three (former) fellow students were prepared to give their opinion about the reliability of the interpretation of the collected materials. The core question regarding external validity relates to whether the results of this particular single case study say something about a larger population of cases in which the results of an instrumental evaluation are compared to the results of a McConnell evaluation for preventive measures. This study remains a single case study and the external validity will therefore be confined. However, generating detailed knowledge is more important with case studies than generalizability (Swanborn, 2008: p. 38). Furthermore, the policy realms framework has a broader focus than a purely instrumental evaluation (a focus on three realms vis-à-vis a focus on one realm). The broader focus can reasonably be expected to provide a more comprehensive picture about the degree of policy success. This applies to both the act and to similar cases. Regarding reliability, this study endeavors to be open about the followed procedures. The basic codes were constructed deductively by using the indicators of the policy realms framework. These indicators suggested clear categories. This basic strategy was used to code more systematically which will also improve the internal validity. For example, regarding the first process indicator, ‘governmental objectives’, ‘governmental means’ and ‘(number of) changes to governmental objectives and means’ formed the codes. Regarding the first program indicator, ‘implementation’, ‘implementation objectives’ and ‘differences between implementation in practice and implementation objectives’ formed the codes. Regarding the political indicator, ‘electoral prospects’ and ‘consequences for the reputation of government and leaders’ formed the codes. A similar coding strategy was followed for the remaining indicators. The basic codes were occasionally complemented during the analysis, because the nature of the data and the comments made within the data often trigger ideas during coding processes (Berg and Lune, 2012: p. 366). For example, most national newspaper articles consulted scholars and practitioners in the field to describe the popularity of the act among Dutch citizens. As a consequence, the codes ‘expert expects the public to be in favor of changes to the law’ and ‘expert expects the public to be opposed to changes to the law’ were also used to estimate the popularity of the act among the Dutch population. Coding categories were thus occasionally refined during the data-gathering process, but most coding categories were constructed deductively. The research questions were carefully taken into account during the data analysis. Finally, precautions were taken to improve the integrality of the materials and the reliability. To put it differently, all (parliamentary) papers of the file of the act were analyzed. Chapter 4 The Criminal Investigation of Terrorist Crimes Act: explanation and application of the methods
4.1 The Dutch Criminal Investigation of Terrorist Crimes Act
4.1.1 Dutch legal trends regarding terrorism
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There have been two broad legal trends regarding counterterrorism in the Netherlands since 2004. The first trend relates to the increasement of sentences for crimes that are committed with a terrorist intent. The second trend relates to the fact that more acts related to terrorism have become punishable. In order to realise this, there have been significant investments in the adding of legal instruments that can be utilized for counterterrorism (MvT, 2005: p. 6 and USBO, 2016: p. 23). Explicit Dutch national counterterrorism measures within legislation and policy were not initiated until 2004. These explicit measures have only been initiated after the murder on Pim Fortuyn (2002) and the terrorist attacks in New York (2001) and Madrid (2004). It concerned both adjustments to existing rules (like the extension of the retention limit of telecommunications data, the introduction of the identification requirement and the strenghtening of the security at airports) and the introduction of new acts on terrorism like the Terrorist Offences Act (in Dutch: Wet terroristische misdrijven) and the Criminal Investigation of Terrorist Crimes Act (in Dutch: ‘Wet ter verruiming van de mogelijkheden tot opsporing en vervolging van terroristische misdrijven’, (USBO, 2016: p. 53)). The Terrorist Offences Act was introduced in 2004. Article 83a (Dutch Law) of this criminal code describes what acts are covered by a terrorist offence. Article 83b concerns the preparation or promotion of a terrorist act. The difference is that the latter is not about a terrorist crime, but it nevertheless ‘relates to terrorism’ (Mevis, 2013: p. 748). The act subsequently increases the penalties of crimes that are committed with a terrorist intent. As a consequence, if a crime complies to the definition of article 83, the punishment of the crime will be higher compared to the same crime that lacks a terrorist intent. This only applies to prison sentences and these sentences will be increased by 50% (Mevis, 2013: p. 747). Due to the fact that the Netherlands has a maximum prison sentence of fifteen years, an ordinary crime in which the law prescribes 15 years imprisonment will be converted to life imprisonment (with the alternative of 30 years). In other words, a 22,5 years imprisonment is not possible (Mevis, 2013: p. 948-949). Hence, terrorist crimes are ‘ordinary crimes’ (like money laundering, falsifying passports and committing a murder). The only difference is that the ‘ordinary crime’ is committed with a terrorist intent (Mevis, 2013: p. 746). Besides the higher sentences for crimes that are committed with a terrorist intent, there is a second trend that relates to the fact that more terrorism-related crimes have become punishable since 2004. Examples of punishable acts are the expansion of criminal conspiracy (mutual agreement between at least two persons to commit a terrorist offence), the engaging in preparatory acts of terrorism, the promotion of terrorism, the recruitment for armed combat and the participation and cooperation in setting up terrorist training camps (Borgers and Sliedregt, 2009: p. 176-177, USBO, 2016: p. 148 and Mevis, 2013: p. 303). Hence, the punishments of acts related to terrorism have moved to the earlier stages (Mevis, 2013: p. 304). Authorities may further prohibit terrorist organisations that are mentioned on UN and EU sanction lists. It is a criminal offence to continue to participate in such organisations. This may lead to a one-year term of imprisonment (Borgers and Sliedregt, 2009: p. 177). Finally, terrorism financing has been a criminal offence since 2013 (NCTV, 2016: p. 20 and USBO, 2016: p. 85).
4.1.2 The Criminal Investigation of Terrorist Crimes Act and its practical implications The Dutch legislator has organised (special) investigative powers in three domains. Special investigative powers are used for the investigation of crimes. These powers can be divided in (Mevis, 2013: p. 300):
-systematic observation;
20
-infiltration;
-pseudo-purchases and the provision of services;
-systematic gathering of information;
-recording a private area;
-recording confidential information;
-recording telecommunication;
-requesting telecommunication data;
-requesting other data than telecommunication data;
-order to preserve files or to keep the files available.
The foundation of the traditional first domain to use these special investigative powers is the ‘reasonable suspicion criterium’ that a criminal offence has been committed. The reasonable suspicion criterium requires that the suspicion is based on facts and circumstances that needs to be ‘hard’ (CBP, 2004: p. 4). Furthermore it requires that the facts and circumstances are sufficiently indicative that the criminal offence has been committed (CBP, 2004: p. 5). The special investigative powers can only be used after this requirement is met. The second domain is specifically aimed at organised crimes. The foundation of the second domain deviates from the first domain. The second domain still requires the reasonable suspicion criterium, but the difference is that the criminal offence does not have to be committed (MvT, 2005: p. 7-8 and Mevis, 2013: p. 322). The Criminal Investigation of Terrorist Crimes Act constitutes the third domain of investigation and its introduction on 1 February 2007 has been one of the major changes to the Dutch criminal law (Mevis, 2013: p. 305). The essence of the Dutch Criminal Investigation of Terrorist Crimes Act relates to the extension of the foundation to use special investigative powers. The extension concerns the use of the‘indication criterium’ for terrorist crimes instead of the ‘reasonable suspicion criterium’. The latter requires a lower degree of probability (Mevis, 2013: p. 302). As a consequence, special investigative powers can be used at an earlier stage in case of crimes related to terrorism. Moreover, it enables a longer continuation of these special investigative powers. The act can be divided in the following extended powers (MvT, 2005: p. 1 and Van Gestel and De Poot, 2014: p. 65):
the broadening of possibilities to utilize special investigative powers the broadening of possibilities to gather information during exploratory investigations the broadening of possibilities to search persons in security risk areas without the requirement of a suspicion of committing a specific criminal offence enabling remand in custody in case of a suspicion of a terrorist offence without the requirement of a grave presumption the possibility to delay a full inspection of procedural documents
It is important to note that not all investigative powers of the first domain can be used, but ‘only’ the special investigative powers (Mevis, 2013: p. 323). For example, someone who is not a formal suspect may be subjected to the use of special investigative powers, but he can not be arrested as long as he is not a suspect. In order to become a suspect, the ‘reasonable suspicion criterium’ is
21 required (Mevis, 2013: p. 310). The Criminal Investigation of Terrorist Crimes Act is based on two general assumptions (Van Gestel et al, 2014: p. 6-7 and 65 and Mevis, 2013: p. 306):
the broadened special investigative powers enable the police and the Public Prosecution Service to use special investigative powers at an earlier stage if there are any ‘indications of a terrorist crime’; the utilization of special investigative powers at an earlier stage and the possibility to use them for a longer time enables a more effective gathering of criminal evidence concerning a supposed terrorist attack. Suspects can be identified earlier, a terrorist offence can be prevented and the suspects can be prosecuted successfully.
According to the NCTV (2016: p. 20), the authorities will make use of all the possibilities offered by law to prosecute individuals suspected of committing terrorist crimes while upholding legal requirements and the principles of the rule of law. The broadening of possibilities to use investigative powers is an important element of the act, but there are more modifications. For example, the investigation of persons, goods and means of transport in security risk areas has been enabled in case of terrorist threats. Another measure relates to the first fourteen days of pre-trial detention. This requires an ‘ordinary suspicion’ instead of the more serieus grave presumption criterium. The grave presumption criterium requires that it must be probable that a suspect has committed a crime. The final measure relates to the pre-trial detention until the beginning of the trial. The maximum term for retention in custody for ordinary crimes is 90 days. The course of the hearing has to start after this term if one wishes to extend the remand in custody. Regarding crimes related to terrorism, the retention in custody can be increased several times by 90 days with a maximum of two years. The suspect may not have full access to his file and to evidence against him if the criminal investigation is not finished. (Borgers and Sliedregt, 2009: p. 177, Mevis, 2013: p. 439, RvdR, 2004: p. 1 and Van der Woude, 2010: p. 266). Using official AIVD notifications as evidence in criminal cases is possible and judges may hear witnesses (for example an AIVD official) without revealing their identity. These measures have increased possibilities for investigating and prosecuting terrorist offences (NCTV, 2016: p. 20 and Borgers et al, 2009: p. 177). Using special investigative powers requires the authorization of the public prosecutor. The only exception are the special investigative powers that relate to the searching of persons in security risk areas. The ‘indication criterium’ is sufficient for this investigative power (Mevis, 2013: p. 301). Hence, the police cannot decide to apply special investigative powers on its own. Moreover, the orders for using the special investigative powers have to be written down (Mevis, 2013: p. 304-305).
The Minister of Justice at the time deemed the act necessary due to the severe consequences of terrorist crimes and the major interests that are involved in case of terrorist crimes. Nevertheless, he acknowledged that the new legal possibilities need to be carefully applied (Van Gestel and De Poot, 2014: p. 7). The ‘indication criterium’ for committing a terrorist crime is, however, still vague in its practical implications for the use of investigative powers, except for the fact that the indications do not have to be as strong as with the ‘reasonable suspicion criterium’. The difference between the ‘indication criterium’ and the ‘reasonable suspicion criterium’ lays in the word ‘indicate’. Indications may not fulfill the ‘reasonable suspicion criterium’. The indications still have to be reliable and concrete (Mevis, 2013: p. 302 and Van der Woude, 2010: p. 260). The ‘indication criterium’ relates to the availability of information regarding facts and circumstances that indicate that a terrorist crime has been committed or will be committed. Three examples of application will be mentioned here.
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The first relates to a difficult to verify rumour about the preparation of terrorist crimes or about conspiracies to commit terrorist crimes. Second, the act may be useful in case of an investigation to a group in which there are only a couple of real suspects. Other members may be investigated on the ‘indication criterium’. Finally, the results of AIVD threat analyses may also provide a sufficient ground for the ‘indication criterium’. The mentioned examples may enable the use of investigative powers at an earlier stage compared to the ‘reasonable suspicion criterium’ (MvT, 2005: p. 9).
4.2 Application of the methods: process realm The Council of State, political parties and five consultative organisations were involved in the legislative process of the act. As a consequence, they will frequently pass in review during the discussion of the process indicators. These actors are briefly described in Appendix I.
4.2.1 Consultative and legislative process The advices of the consultative actors and the input of the political parties will be described per measure.
Consultative actors
The indication criterium for the application of special investigative powers
The Explanatory Memorandum describes the undesirability of a lack of possibilities to apply special investigative powers in case of indications of terrorist crimes, but the Council has doubts about the added value of the indication criterium (Council of State, p: 1). The existing legislation and international treaties provide numerous (new) possibilities for preventive interventions against terrorist crimes. As a consequence, the suspicion criterium can be quickly applied which enables the application of special investigative powers. The Explanatory Memorandum describes that an analysis has been made regarding the necessity of further possibilities, but this analysis is not described. The Council of State advises to display this analysis to provide for a better argumentation regarding the necessity of the indication criterium (Council of State, 2005: p. 2). The Dutch Bar Association (NOvA) points to the requirement of the EVRM that governmental acts like special investigative powers need to be specific for the purpose of the legal certainty of citizens. The indication criterium is vague, because indications are not required to be based on facts or circumstances that are relatively easy to verify. The NOvA fears that innocent individuals will be subjected to radical special investigative powers as a consequence. This is unacceptable and the indication criterium should be described more specifically (NOvA, 2004). The NOvA criticizes the fact that foreign investigative officers are allowed to apply the same special investigative powers, because it is unlikely that this will be reviewed by Dutch judges (NOvA, 2004). The NOvA fears the lack of possibilities for judicial review in general (NOvA, 2004). The third domain that is introduced with the proposed act makes the systematics of the criminal law more complex and the domain causes tensions with articles 5, 6 and 8 EVRM (NOvA, 2004). Finally, the NOvA wanted to connect a time period to the proposed special investigative powers, but the cabinet did not agree (MvT, 2005: p. 3). The NOvA suggestions did lead to a more comprehensive explanation of possible tensions with the EVRM and to a more comprehensive explanation of the application conditions for the special investigative powers (MvT, 2005: p. 4). The Dutch Association for the Judiciary (NVvR) recommends that the name of the public prosecutor that ordered the application of the special investigative powers should be mentioned in the report (NVvR, 2006: p. 2). According to the Dutch Data Protection Authority (CBP), the application of the special investigative powers will probably infringe on fundamental rights of
23 citizens. The EVRM requires a solid legal foundation and a justified objective for these infringements. The indication criterium is vague and does not require that the indications are reasonable and based on facts and circumstances. They will often be based on soft information (CBP, 2004: p. 5). Furthermore, there is a risk that certain ethnic groups (based on religion or ethnic identity) will be disproportionally subjected to this measure (CBP, 2004: p. 6). The CPB points to considerable investments that have (recently) been made in national and international legislation to tackle terrorism (CPB, 2004: p. 8). It is in this light that the necessity of the indication criterium and the supposed limitations of the existing legislation are insufficiently motivated according to the CPB (CPB, 2004: p. 6). The police gets powers comparable to the AIVD. The Explanatory Memorandum describes that a distinction in AIVD and police tasks are counterproductive, but this is absolutely insufficiently motivated (CPB, 2004: p. 7). The general advice of the CPB is about the provision of criteria that makes the application of the powers more justified and transparant while guaranteeing objective governmental interventions (CPB, 2004: p. 1 and 6). The indication criterium was more comprehensively explained as a consequence of a CPB suggestion (MvT, 2005: p. 5). According to the Council for the Judiciary (RvdR), the indication criterium provides the judge with insufficient objective information to take a decision. The proposed act does not provide for concrete requirements regarding the foundation of the indication criterium (RvdR, 2004: p. 3). As a consequence of the infringing character of the special investigative powers, this arguably leads to tensions with obligations accruing from article 8 EVRM (right to respect for private and family life) (RvdR, 2004: p. 3-4). Finally, the RvdR is concerned about the possibilities for a judicial review regarding foreign officers (RvdR, 2004: p. 4).
Security risk areas and exploratory investigation
The Council of State and the Dutch Data Protection Authority point to the risk that certain ethnic groups will be disproportionally subjected to searching powers as a consequence of the discretionary character of the measure. This risk must be prevented and their advices relate to a more specific foundation regarding the protection against discrimination when applying the searching possibilities. This requirement also stems from article 8 EVRM (Council of State, 2005: p. 4 and Van der Woude, 2010: p. 264). The Dutch Association for the Judiciary criticizes that investigative officers are allowed to search in security risk areas without a concrete reason. The NVvR recommends more specific conditions for applying these special investigative powers in order to prevent searching for other reasons than terrorism-related threats (NVvR, 2006: p. 2). The danger of an unequal treatment based on ethnicity or religion has also been made regarding exploratory investigations (Van der Woude, 2010: p. 265). The NOvA argues that the exploratory investigation for the second domain (organised crimes) is sufficient for terrorist crimes due to the minimum difference between organised crimes and terrorist crimes. A lighter application criterium for exploratory investigations is not necessary (NOvA, 2004). The CBP is not convinced about the added value of the application of special investigative powers within exploratory investigations in order to prepare for the application of special investigative powers in criminal investigations. The CBP points to an insufficient standard- setting for risk selecting and datamining. The CBP confirms the relevance of the obligation to account for the exploratory investigation that is described in the Explanatory Memorandum (CBP, 2004: p. 10).
Remand in custody in case of a suspicion and delaying a full inspection of procedural documents
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The Council of State argues that the incentive to investigate efficiently decreases with the two-year term for the remand in custody (Council of State, 2005: p. 3). The Council acknowledges that certain complex terrorist investigations require a lot of time before the case can come to court. However, not all terrorist investigations are complex. The delay of a full inspection to procedural documents increases the responsibility of the judge. The judge has to decide about the extension of the delay, but he or she is not allowed to consult documents that are not available to the suspect. It is necessary that a judge has the information that is relevant to judge the counterarguments of the defense in order to guarantee an adequate judicial control on investigations. The Council advises to regulate the proposed extension of the remand in custody and the related delay of a full inspection of procedural documents for terrorist crimes more narrowly (Council of State, 2005: p. 3). The NOvA states that situations concerning a long-term application of the remand in custody require a judicial review regarding its continuation (Van der Woude, 2010: p. 268). The requirement to apply the retention in custody on the lighter ordinary suspicion criterium enables the possibility of an enduring remand in custody based on hardly verifiable information which is undesirable according to the NOvA (NOvA, 2004). Delaying a full inspection to procedural documents makes it hard for the supervisory judge to hold a substantive review of the lawfulness of the retention in custody (Van der Woude, 2010: p. 267). Both measures cause tensions with articles 5 (right to liberty and security) and 6 (right to a fair trial) EVRM and are insufficiently motivated according to the NOvA (NOvA, 2004). Nevertheless, the cabinet did not change the criterium for pre-trial detention (MvT, 2005: p. 3). The Council for the Judiciary deduces from legal practise that the reasonable suspicion criterium is much quicker assumed than the grave presumption criterium (RvdR, 2004: p. 1). The margin of appreciation for deciding about the necessity of a remand in custody becomes too low for the examining magistrate (RvdR, 2004: p. 2). The proposed act instructs the judge insufficiently (RvdR, 2004: p. 5). Like the NOvA, the RvdR warns about possible tensions of the reasonable suspicion criterium with article 5 EVRM, especially in case of a long remand in custody (RvdR, 2004: p. 2). Like the Council of State, the RvdR notices a lack of motivation regarding the term of two years. This term may have detrimental consequences for the efficiency of investigations which is important for the rights of the suspect (RvdR, 2004: p. 3). The possibility of delaying a full inspection of procedural documents can have detrimental consequences for the ability of the judge to decide about the remand in custody during a judicial review. This is especially problematic if the remand in custody is longer than the eventual prison term (RvdR, 2004: p. 5). It may have detrimental effects on the trust of the citizen in the jurisprudence and in the general government (RvdR, 2004: p. 3 and 5). The Council of Attorneys-General acknowledges the necessity to delay a full inspection of procedural documents in case of complex investigations to terrorist offences. This actor points, however, to the risk that the judge will have the impression that the claim regarding the extension of the remand of custody is based on the wish to delay a full inspection of procedural documents in case of terrorist offences (Van der Woude, 2010: p. 269).
Political parties
Criticism on the act in general
Cabinet Balkenende II consisting of the VVD, CDA and D66 initiated the act (Parlement en Politiek). This cabinet was in charge during the debates and voting (23 May 2006) in the Second Chamber. During the First Chamber debates and voting (14 November 2006), cabinet Balkenende III was in charge. The VVD and CDA formed a minority coalition in the second chamber with 71 seats, but they
25 had a majority in the First Chamber with 38 seats (Parlement en Politiek). Minister of Justice Piet Heijn Donner (CDA) resigned on 21 September 2006 and he was followed up by Ernst Hirsch Ballin (CDA). Minister Donner about the act in general (Handelingen 2005/06, item 73, p. 4612):
~Piet Heijn Donner (Minister of Justice)~
“An aspect of modern terrorism that confrontates us, is that the culprit often seeks to die as well. The deterrent effect of a punishment disappears as a consequence, because the culprit does not expect to be present after the attack. For this reason, investigating and punishing culprits of terrorist attacks is basically not the way we want to tackle terrorism. The emphasis should be placed on prevention”
According to the Explanatory Memorandum, the act stems from a critical look at the laws on terrorism following the terrorist attacks in Madrid in 2004. Four reasons for initiating the act are described. First, prevention requires more attention in case of terrorist offences compared to most other ‘ordinary’ crimes. This can justify criminal procedures aimed at prevention that are different from ‘ordinary crimes’. Second, the importance of the freedom of speech is mentioned in relation to the murder on Theo van Gogh in 2004. Third, other countries like France and the UK have also initiated acts that are specifically aimed at terrorism. Fourth, the act should be seen in coherence with and in addition to other acts on terrorism like the Terrorist Offences Act (MvT, 2005: p. 1-2).
Coalition parties CDA, VVD and D66 acknowledged the important target of the act in the Second Chamber. The VVD and CDA also found the act necessary and a logical subsequent step in addition to existing acts on terrorism (Handelingen 2005/06, 30164, item, 56, p. 3677):
~ Frans Weekers (VVD)~
“Services involved in the counterterrorism domain need new legislation in order to provide them with sufficient tools to perform their tasks properly. This proposal contributes to this and it forms a logical hanger to the earlier accepted, but more substantive Terrorist Offences Act”
The CDA argued that the act is a way to protect the rule of law (Handelingen 2005/06, 30164, item 56, p. 3670):
~ Wim van Fessem (CDA)~
“Many human rights have been formulated during the last decades. These rights offer, among other things, protection against unlawful governmental interventions. However, they must, according to the CDA, first of all guarantee the first and most important human right, the right to stay alive and to not get a bomb on your head”
Nevertheless, the VVD expressed concerns regarding the common influence of multiple laws on terrorism on the rights of suspects (Kamerstuk 2005/06, 30164, item 7, p. 6). D66 needed to be convinced about the effectivity, necessity and proportionality before being able to accept the act (Handelingen 2005/06, 30164, item 56, p. 3673). The PvdA (biggest opposition party) and SP pointed to an insufficient justification of the act in general as its initiation seems to be solely motivated by the big threat of a terrorist attack (Kamerstuk 2005/06, 30164, item 6, p. 3, 5, 6 and 7). The PvdA, SP, D66 and LPF criticized the ministerial remark made in the Explanatory Memorandum that it is not necessary to ‘do nothing until it can be determined with practical examples that existing powers are
26 insufficient’. The LPF emphasized that although the current threat of terrorism may justify a broadening of the boundaries of the rule of law, it should always be determined that newly created powers are necessary and effective (Van der Woude, 2010: p. 258). The minister relied on the Guidelines on Human Rights and the Fight against Terrorism of the Council of Europe in his response that it is the responsibility of the government to protect its citizens against terrorist attacks. This responsibility justifies the stimulation of criminal acts that improve instruments of criminal law to prevent terrorist crimes with potentially serious consequences (Kamerstuk 2006/07, 30164, item 7, p. 8). Assumed tensions with the EVRM emerged from the debate. The cabinet’s point of view was that infringements of rights and freedoms can be justified as a consequence of the continued threat of serious terrorist attacks. Furthermore, there exist guarantees regarding the application of special investigative powers (Van der Woude, 2010: p. 272). The mutual effects of multiple acts regarding terrorism (like the Terrorist Offences Act) and a sunset clause (entailing a legal obligation to evaluate the effects of the act after five years) were also discussed (idem.). The PvdA and D66 argued that the effects of the initiation of isolated terrorism acts may not be significant, but the mutual effects may have (significant) negative effects on fundamental rights and freedoms like the rights of suspects and the right on privacy. These parties advocated the initiation of a legal code on terrorism as this would increase the oversight on the total legislation regarding terrorism. It would also decrease the disproportional application of special investigative powers. The minister did not agree with this reasoning. He argued that all separate measures succeeded in tests regarding necessity, effectivity and proportionality (Van der Woude, 2010: p. 273). The separate measures are coherent with the systematics and concepts of the existing criminal code, deviations of ordinary criminal laws need to be sufficiently motivated and a separate code would have detrimental overview consequences for practitioners (Kamerstuk 2006/07, 30164, item 7, p. 9). Finally, the PvdA proposed to adopt a legal evaluation provision in the act which was rejected by the chamber (Van der Woude, 2010: p. 259). The minister agreed with the necessity to evaluate the act, but he was not prepared to lay this down in the act itself. All parties with the exception of GreenLeft voted for the proposed act in the Second Chamber (Handelingen 2005/06, 30164, item 81, p. 5008).
In the First Chamber, the VVD and CDA found the general act proportional and responsible (Kamerstuk 2006/07, 30164, item C, p. 3). The PvdA found the balance between the governmental duty to protect its citizens against terrorist attacks and the protection of the rule of law and human rights (regarding the suspect) unjust, especially in the light of the effects of the total package of laws on terrorism. The minister disagreed, because of the requirements of subsidiarity, effectivity and proportionality (Kamerstuk 2006/07, 30164, item D, p. 3 and 12 (Kamerbrief)). The sunset clausule was briefly mentioned in the Second Chamber, but it turned out to be a core point in the First Chamber debat. The PvdA (supported by coalition party D66, GreenLeft and the SP) mentioned this due to an insufficient motivation about the necessity and effectivity of the proposed act (Kamerstuk 2006/07, 30164, item D, p. 8). The clausule would increase the obligation for governmental officials to justify the earlier application of special investigative powers regarding terrorist crimes. Furthermore, it would increase the possibility to verify the effectivity of the act and the possible tensions with fundamental rights and freedoms (Van der Woude, 2010: p. 275). The response of the minister entailed that international terrorism will be a problem on the long term and that the government is responsible to protect its citizens against terrorist attacks. A sunset clausule is only useful for short-term policies (Kamerstuk 2006/07, 30164, item 7, p. 4). GreenLeft was not convinced about the act (Handelingen 2006/07, 30164, item 5, p. 174):
27
~ Diana de Wolff (GreenLeft)~
“In general, I notice that the necessity of neither the general act nor the separate measures has been demonstrated. There is a threat, there was an attack two years ago and one is scared. An act must be initiated, because we must do something’’
Partly due to the promise of the minister to continiously monitor and evaluate the act every year, all parties except for GreenLeft and one member of the PvdA voted for the proposed act in the First Chamber (Handelingen 2006/07, 30164, item 7, p. 274-275).
The indication criterium for the application of special investigative powers
Many questions were raised about the indication criterium. The indication criterium is vague in its practical implications according to the VVD, D66, PvdA, SP and CU. It could lead to legal uncertainty and the creation of a criminal law that makes intentions and thoughts punishable (Handelingen 2005/06, 30164, item 56, p. 3680):
~ Jan de Wit (SP)~
“I also have questions regarding the meaning of the indication criterium. This concept remains unclear, like all other speakers have advocated”
This vagueness would also lead to difficulties for judges. The response of the minister entailed that the information and application of special investigative powers will be tested by the public prosecutor or supervisory judge against the requirements of reliability, possibilities to verify, proportionality and subsidiarity (Kamerstuk 2005/06, 30164, item 7, p. 3). Furthermore, an official report is required after applying them. The response of the minister equates a view that investigative officers need to be able to apply special investigative powers in case of any terrorist crime in order to gather intelligences. After all, terrorist crimes may have destructive consequences and the mentioned requirements would prevent a wrong application of the special investigative powers (Kamerstuk 2006/07, 30164, item 7, p. 16). D66 and the SP raised questions about the added value of the indication criterium towards existing regulation. The minister responded that indications regarding severe terrorist crimes can not be subjected to special investigative powers. The indication criterium enables this possibility which improves the prevention of terrorist crimes. Furthermore, practitioners and the Council of Attorneys-General made clear that there is a need for a lighter criterium (Kamerstuk 2006/07, 30164, item 7, p. 20). The minister refused to define the indication criterium in the act. Members of the PvdA, D66 and Christian Union (CU) argued that the vague character of the indication criterium may lead to tensions with article 8 EVRM as a consequence. This article requires that special investigative powers can only be applied in case of interventions that are described by law while there also needs to be a necessity to protect the society against threats. According to the minister, practitioners were sufficiently able to work with this criterium in other areas of law and a legal definition would not provide them with more precise instructions (Kamerstuk 2006/07, 30164, item 7, p. 12). The overlap in roles between the AIVD and investigation services due to the indication criterium was also questioned by several parties (Handelingen 2005/06, 30164, item 56, p. 3684).
The meaning of the indication criterium and its consequences for legal certainty was also questioned in the First Chamber by the CDA, D66 and PvdA. The minister again clarified the indication criterium
28 and argued that the indication criterium would prevent the extension of the ordinary suspicion criterium in the form of an earlier application of special investigative powers in case of assumed terrorist offences (Kamerstuk 2006-07, 30164, item C, p. 6-7 and Kamerstuk 2006/07, 30164, item D, p. 13).
Security risk areas and exploratory investigation
D66 and the PvdA argued that the determination of security risk areas is a powerful tool of the public prosecutor. D66 proposed that these searching powers should be permitted by a supervisory judge. The minister argued that searching powers do not confine freedom rights and not everyone will be searched (Kamerstuk 2005/06, 30164, item 7, p. 21-22). D66, the PvdA and GreenLeft were concerned about racial profiling (Handelingen 2005/06, 30164, item 56, p. 3669). D66 was also concerned about searching based on other interests than terrorist crimes. The minister responded that the guarantees and professionality of officers would prevent this. Regarding exploratory investigations, CDA agreed with the desirability of this possibility. All sorts of investigations should be possible in case of indications of a terrorist crime (Kamerstuk 2005/06, 30164, item 7, p. 23). The LPF asked the minister about the necessity of the exploratory investigation. The minister argued that an exploratory investigation offers new insights about activities of persons who are possibly prepared to plan or commit a terrorist offence. A subsequent regular investigation can use information that stemmed from the exploratory investigation (Kamerstuk 2005/06, 30164, item 12, p. 22). The minister acknowledged the extensiveness of the exploratory investigations and pointed to three guarantees that are made. First, the public prosecutor decides about the way of dealing with intelligences. Second, an official report will be made about the execution of the exploratory investigation. Third, the dealing with intelligences needs to be done with due acknowledgement to the protection of privacy (Kamerstuk 2005/06, 30164, item 7, p. 27-28). This part of the act is not further discussed after the guarantees made by the minister (Van der Woude, 2010: p. 266).
In the First Chamber, the CDA found the exploratory investigation understandable and proportional, but pointed to possible social unrest and the risk that non-suspects will be subjected to exploratory investigations. The minister responded with guarantees that are made for acquiring the intelligences, such as subsidiarity, proportionality and the involvement of a public prosecutor and a supervisory judge (Kamerstuk 2005/06, 30164, item D, p. 15-16).
Remand in custody in case of a suspicion and delaying a full inspection of procedural documents
The VVD and PvdA pointed to an increased risk that individuals will be remanded in custody after which an initial suspicion turns out to be false following further investigations. The minister justified the measure by mentioning the severe character of terrorism threats (Kamerstuk 2005-06, 30164, item, 7, p. 29 and 31). The minister mentioned three guarantees to prevent misuse in response to concerns among VVD members. First, the authority that orders a remand in custody is a judge. Second, if there are no longer grounds to uphold a remand in custody, the judge must order the release of the suspect. Finally, the suspect can ask the court for a release (Kamerstuk 2005-06, 30164, item 7, p. 31). D66 and GreenLeft raised questions about the added value of the reasonable suspicion criterium for the remand in custody regarding terrorist crimes. The minister argued that there is a growing need among practitioners for a longer term as a consequence of the complex and international character of investigations to terrorist crimes (Kamerstuk 2005-06, 30164, item 7, p. 28). GreenLeft pointed to a rather unbalanced focus on protecting society against terrorism while
29 neglecting infringements on rights of personal freedom. The requirement of article 6 EVRM (right to a fair trial) also applies to suspects of terrorist crimes (Kamerstuk 2005-06, 30164, item 7, p. 46). The minister received questions about the reasons for the two-year period from the CDA and D66 (Handelingen 2005/06, 30164, item 56, p. 3676):
~ Boris Dittrich (D66)~
“What are the governmental justifications of the two-year term? Is the NNVR right in that this has been chosen arbitrarily? Why did the government not choose for a one-year term for example?”
The position of the judge and the possibilities to review the continuation of a remand in custody received the most attention. The minister argued that the decision about the extension of a remand in custody does not differ from usual practices. The pre-trial orders of ordinary crimes may be suspended every three months during pro-forma sessions. The only difference in case of terrorist offences is that the suspect will not receive a summon to appear in court. The Council Chamber will decide about the prolongation of the remand in custody (Kamerstuk, 2005/06, 30164, item 12, p. 18 (Kamerbrief)). The only difference is that the requirement of a full inspection of procedural documents expires as a consequence. The minister justified the two-year period regarding a delay of a full inspection of procedural documents by pointing to a balance that had to be made between increased investigative possibilities and a lack of a total limit for this possibility. Furthermore, it is certainly not the case that every suspect that is subjected to a remand in custody will continue to be remanded for a period of two years (Kamerbrief 2005/06, 30164, item 12, p. 17).
In the First Chamber, the CDA, PvdA and D66 questioned the practical implications of the difference between the reasonable suspicion criterium and the grave presumption criterium. Due to assumed tensions with article 5 EVRM, the PvdA preferred to apply the reasonable suspicion criterium for the remand in custody only on terrorist crimes with a minimal prison sentence of 12 years (Kamerstuk 2006-07, 30164, item C, p. 8). The minister responded that article 5 lacks specific requirements for applying the remand in custody and that the measure is legally allowable and desirable (Kamerstuk 2006/07, 30164, item D, p. 18). D66 and the CDA expressed criticism on the implications of a delay of a full inspection on procedural documents. The judge may not be able to review whether there are sufficient grounds to uphold a remand in custody if the public prosecutor refers to investigation interests. This arguably causes tensions with articles 5 and 6 EVRM (Kamerstuk 2006-07, 30164, item C, p. 9). The minister responded that according to the EHRM, not all information has to be available to the suspect as a consequence of investigation interests. Furthermore, the suspect and the judge have the same amount of information at their disposal on which the decision about the remand in custody is based (Kamerstuk 2006/07, 30164, item D, p. 18-19).
4.2.2 Governmental objectives and means The Act stems from the terrorist attacks in Madrid (2004) and from the intention of the cabinet to do whatever is possible and desirable to increase the capability of the government and the society in general to prevent terrorist attacks (MvT, 2005: p. 1). According to the cabinet, terrorist attacks form a serious threat and the unique nature of the threat justifies a separate application of special investigative powers if they can reasonably be expected to contribute to the prevention of terrorist attacks. This also entails an important role for criminal law in preventing terrorist attacks (Van der Woude, 2010: p. 254). Seven amendments and one motion were discussed in the Second Chamber. Only one amendment and the motion were accepted, one amendment was withdrawn and five
30 amendments were rejected (Eerste Kamer, 2006: p. 1-5). The accepted amendment (initiated by Aleid Wolfsen (PvdA) and Frans Weekers (VVD)) related to the enabling of a periodic judicial review regarding the abstention of procedural documents relevant to the suspect. As described earlier, it is possible to extend this period for a maximum of two years. After a refusal of a notice of objection by the suspect, the suspect can ask for a judicial review about the decision to abstent his or her procedural documents. With the exception of ‘Groep Wilders’, the amendment was supported by all parties and the Minister of Justice. The support stems from the coherence of the amendment with the systematics of the criminal code. Furthermore, the amendment increases guarantees against an unbalanced consideration of investigative interests and interests regarding the defense of the suspect (Eerste Kamer, 2006: p. 1). The accepted motion was about the realisation of a conceptual legislative proposal regarding the compensation of damages resulting from criminal charges. The motion was supported by the VVD, CDA, D66, PvdA, SP, GreenLeft, Christian Union, SGP, LPF and ‘Groep Nawijn’ (Eerste Kamer, 2006: p. 5 and Kamerstuk 2005/06, 30164, 19). The withdrawn amendment and the first three rejected amendments were all initiated by Jan de Wit (SP). The amendment that was withdrawn related to the withdrawal of the extended possibilities for imprisonment as a consequence of which the abstention of procedural documents is enabled (Eerste Kamer, 2006: p. 2). The first rejected amendment concerned a reduction of the two-year period for delaying a full inspection of procedural documents. The amendment would change this to a period of 6 months and 104 days. The amendment was supported by the PvdA, SP, GreenLeft and Group Lazrak (Kamerstuk 2005/06, 30164, 14). The second rejected amendment related to a cancelling of the grave presumption criterium for terrorist offences. The grave presumption criterium would only be cancelled for offences that lead to a minimum imprisonment of 8 years. This amendment was supported by the SP and GreenLeft (Eerste Kamer, 2006: p. 2 and Kamerstuk 2005/06, 30164, 10). The third amendment related to the replacement of the reasonable suspicion criterium by the indication criterium. Due to the indication criterium, special investigative powers may be applied to non-suspects (Eerste Kamer, 2006: p. 2). The amendment is about a more stringent judicial review about the application of special investigative powers. This is justified by referring to jurisprudence of the European Court of Human Rights. This amendment was supported by the SP and GreenLeft (Eerste Kamer, 2006: p. 3 and Kamerstuk 2005/06, 30164, 11). The fourth rejected amendement was initiated by Aleid Wolfsen (PvdA) and related to compensation arrangements for damages caused by investigations to terrorist crimes. Despite the fact that the amendment was rejected, the minister strived for a legal compensation arrangement for crimes in general (Handelingen 2006/07, 30164, 73: p. 4619). This was also requested by the VVD. (Tweede Kamer handelingen 2005/06, 30164, nr. 56: p. 3678). The initiator justified the amendment, because it is more likely that special investigative powers will be applied unjustly as a consequence of the indication criterium. The purpose of the amendment is to provide for a ‘simple, efficient and informal compensation arrangement’ in the criminal code in case of disagreements between individuals subjected to special investigative powers and the police and Public Prosecution Service. This proposal should be constructed and sent to the chamber later on. Until the approval of this proposal by the chambers, a special temporal regulation for compensation should be applied (idem.). The judge should decide about the award of damages on the basis of equity considering the circumstances. An unlawful application of special investigative powers will often lead to an award of damages. Whether damages will be awarded in case of a lawful application of special investigatory powers should depend on the behaviour of the suspect. The question that needs to be answered in such a situation is about how suspicious the individual behaved. An additional important condition for the award of damages is the requirement of a direct
31 connection between the application of special investigative powers and the damage that has been caused. Besides the suspect, other parties may also receive a compensation (Eerste Kamer, 2006: p. 4 and Kamerstuk, 2005/06, 30164, 18). The amendment was supported by the PvdA, SP, Greenleft and ‘Groep Lazrak’. The final rejected proposal (initiated by Joost Eerdmans (LPF)) concerned the qualification of the recruitment for an armed combat (jihad) as a terrorist crime. Holding back information about recruiters should also become punishable according to the initiator. This would make the work of recruiters more difficult. The amendment was supported by ‘Groep Wilders’, SGP, LPF and ‘Groep Nawijn’ (Eerste Kamer, 2006: p. 5 and Kamerstuk 2005/06, 30164, 15). The minister (strongly) advised against all rejected amendments (Handelingen, 2005/06, 30164, 73: p. 4620-4622). On November 15, 2007, Alexander Pechtold (D66) initiated a motion considering a request to the cabinet to investigate the possibilities regarding the best way to evaluate counterterrorism measures. This motion was accepted and led to a commission consisting of several independent external experts that would investigate these possibilities. The commission recommended an integrated evaluation of the total package of counterterrorism measures. The minister will follow all recommendations that were provided by the commission (Van der Woude, 2010: p. 277-278).
4.2.3 Perceived legitimacy of the consultative and legislative process This indicator requires that the parties and consultative organisations found themselves to be able to express their views according to accepted legal and consultative procedures based on democratic values, deliberation and accountability. As described earlier, the act has been discussed in the Dutch First and Second Chamber in accordance with legal procedures and, in accordance with consultative procedures, several consultative organisations expressed their views on the proposed act. The involved consultative actors were the Council of State, Dutch Bar Association (NOvA), Dutch Association for the Judiciary (NVvR), Dutch Data Protection Authority (CBP) the Council for the Judiciary (RvdR), and the Council of Attorneys-General (Van der Woude, 2010: p. 255). The Board of Commissioners and regional police force managers were also approached to provide for an advise, but they failed to do so (MvT, 2005: p. 1). All consultative actors were requested by the Minister of Justice to provide for a written opinion regarding the proposed act (NOvA, 2004, NVvR, 2006: p. 1 and RvdR, 2004: p. 1). The following citations provide some insights about the valuation of the parliamentary debates by both coalition parties and opposition parties. Regarding the Second Chamber (Handelingen 2005/06, 30164, item 79, p. 4938-4939 and 4943):
~Wim van Fessem (CDA)~
“The CDA thanks the minister for all activities to inform the chambers and is extraordinarily satisfied with the comprehensive way we were enabled to discuss this act”
~ Frans Weekers (VVD)~
“I thank the minister for the extensive and in-depth answering of the questions. We are really satisfied with this”
~ Boris Dittrich (D66)~
“I must say that I have become convinced by many of the answers from the minister”
~ Kees van der Staaij (SGP)~
32
“I thank the minister for the transparant explanation and for the excellent written answering’’
Several appreciations were also expressed in the First Chamber (Handelingen 2006/07, 30164, item 5, p. 169 and 225-226):
~ Fred de Graaf (VVD)~
“I thank the minister for his very solid answers. I had not expected otherwise after an equally solid reply to the statement of objections we were able to receive from this Minister”
~ Hans Engels (D66)~
“To be fair, I have to admit as a member of a non-coalition party that the cabinet has not been weakened by these ministers”
~ Willem Witteveen (PvdA)~
“During the exchange of views in the First Chamber and the written preparation in the First Chamber, many issues were discussed in an extensive, sound and transparant way’’
4.3 Application of the methods: program realm Several actors are involved in the execution of counterterrorism policies (National Police, Public Prosecution Service, AIVD and NCTV) and they will occasionally pass in review during the discussion of the program indicators. These main executing actors are briefly described in Appendix I. The act was evaluated by the WODC with the purpose to ‘assess whether the Criminal Investigation of Terrorist Crimes Act contributed to an effective investigation of terrorist crimes between 2007 and 2011’ (Van Gestel and De Poot, 2014: p. 65). It was not deemed possible to empirically determine whether specific terrorist attacks were prevented as a consequence of the act. Therefore, the WODC evaluation focused on the execution process (Van Gestel et al, 2014: p. 56). The two central questions were (Van Gestel et al, 2014: p. 65):
‘What are the assumptions underlying the Criminal Investigation of Terrorist Crimes Act?’ ‘How is the Criminal Investigation of Terrorist Crimes Act applied in practice and what are the consequences thereof for investigations?’
The program indicators of the methods (see operationalization) can arguably be deduced from the central questions of the WODC evaluation of the application of the act between 2007 and 2011. In order to prevent a repetition of the WODC evaluation regarding these indicators, this study will use the WODC evaluation results to determine the degree of policy success for these indicators in the analysis. Another reason for using the WODC evaluation is the availability of a sufficient amount of information about the application of the act between 2007 and 2011. The underlying assumptions of the general act were described in paragraph 4.2.2. During the period of the WODC evaluation, 106 terrorism-related criminal investigations were carried out. Both major long-term criminal investigations and short-term criminal investigations are included in this number. The new powers enabled by the act were applied in 18 out of 106 terrorism-related investigations. The results for the program indicators will be described per measure except for the measure regarding the delay of a full inspection of procedural documents. There were no circumstances suitable for applying this
33 measure between 2007 and 2011, because all investigations were concluded within three months (Van Gestel et al, 2014: p. 36 and 69).
4.3.1 Accomplishment of objectives
The indication criterium for the application of special investigative powers
An underlying assumption of this measure was that the detection and prosecution were not sufficient. A second assumption was that the usual requirement of suspicion insufficiently enabled the application of special investigative powers in case of indications of a terrorist crime (resulting from an insufficient substantiated suspicion). Therefore, the objective of this measure (ex ante policy output target level) is to improve the detection and prosecution of terrorist offences by using the indication criterium for applying special investigative powers instead of the suspicion criterium. The indication criterium for applying special investigative powers was used in 15 investigations out of 106 terrorism-related investigations (Van Gestel et al, 2014: p. 9).The investigations were based on citizen reports (5x), AIVD notifications (3x), CIE-information (3x) and information that stemmed from other investigations (4x) (Van Gestel et al, 2014: p. 39). Three different terrorist crimes were used as a starting point (Van Gestel et al, 2014: p. 37). Six investigations were initiated after information about possible connections between a person and a terrorist group or a terrorist suspect. Four of these six indication investigations were executed together with investigations to concrete suspects that were already started (based on a reasonable suspicion). The indication investigations were aimed at the involvement of the individuals with these suspects (Van Gestel et al, 2014: p. 38). Six investigations were started after information about preparatory terrorist acts. These investigations often related to attempts to obtain explosive materials. Two of these cases involved a concrete target towards which the attack was aimed (Van Gestel and De Groot, 2014: p. 39). Three investigations were initiated following a(n) (anonymous) report about a potential bomb attack or suicide attack. Locations were reported in all three cases and names were mentioned in two of them (Van Gestel et al, 2014: p. 37). Individuals were arrested in three investigations, but they were released within two weeks. One investigation led to a prosecution on the basis of a suspicion for preparing a terrorist offence. The suspect is, however, absconded. One investigation was temporarily stopped, because of the fact that the suspect had gone abroad for a longer period. With the exception of the last two investigations, the remaining investigations were stopped due to a lack of criminal evidence against the individuals the investigation focused on (Van Gestel et al, 2014: p. 9 and 41).
Security risk areas and exploratory investigation
The reason for introducing this measure was the assumption that already existing police powers did not enable the police to adequately and immediately investigate indications of area related terrorism threats. A second assumption was that the police could insufficiently investigate independently from local administrations. Therefore, the objective of this measure (ex ante policy output target level) is about improving the ability of the police to adequately and immediately investigate indications of terrorism-related threats in a way that is independent from local administrations (municipalities). This measure is intended for reducing terrorism threats in risk areas by searching individuals, vehicles and goods. These risk areas can be determined temporarily or permanently. The possibility for searching persons, vehicles and objects in risk areas has been applied only limitedly (Van Gestel et al, 2014: p. 9). No temporal risk areas were established between 2007 and 2011, but some permanent
34 risk areas were created in 2007. The body search possibility is only structurally used in the outer area of Schiphol Airport in order to exclude deviant behaviour and to remove area related (especially terrorism) threats. The possibility is not used in other areas. The application in the outer area of Schiphol Airport has not led to information that could be used in terrorism-related criminal investigations. Two reports between 2008 and 2011 could be linked to preparatory terrorist acts, but there was a lack of further evidence (Van Gestel and De Poot, 2014: p. 51). The military police held a preventive searching action in 2010. Two individuals that were involved in a terrorist investigation in the past, had to turn in some of their belongings. Still, no further action was undertaken (Van Gestel et al, 2014: p. 53-54). The searching powers did lead to the (unintended) detection of offences related to organised crime (Van Gestel and De Poot, 2014: p. 9).
The assumption regarding the exploratory investigation relates to insufficient possibilities for gathering additional insights regarding the involvement of persons in terrorist offences in case of a limited amount of information. Therefore, the objective of this measure (ex ante policy output target level) is about improving possibilities for gathering insights regarding the involvement of persons in terrorist offences when there is a limited amount of available information. The new legal powers are meant for situations in which there is no concrete information regarding the involvement of persons in the planning or committing of a terrorist offence. It is also possible to deploy investigative powers if there is a limited amount of information about an organisation that plans or committed a terrorist offence. Names of suspects are not required (Van Gestel et al, 2014: p. 36). One exploratory investigation aimed at disclosing the possible relation between the trading in qat and the funding of an Islamic terrorist organisation in Africa has been carried out. The profit of the qat trade was supposed to be used for the funding of a terrorist organisation, but there were no concrete facts or names of persons available. There was also a lack of information about the participation of individuals in a criminal organisation. The investigation efforts did not, however, lead to additional information (sufficient for indications, suspicions or prosecutions) and the investigation was stopped due to other priorities and a lack of additional information. No further exploratory investigations have been carried out between 2007 and 2011 (Van Gestel and De Poot, 2014: p. 36).
Remand in custody in case of a suspicion
The first assumption was that the ‘grave presumption’ criterion led to the practice of suspects being released too soon with insufficient time to investigate. The second assumption was that the release of these suspects constituted a terrorist threat to society (Van Gestel et al, 2014: p. 69). Therefore, the objective of this measure (ex ante policy output target level) is to increase the investigative time span and to decrease societal threats by terrorist suspects by removing the grave presumption criterium for pre-trial detention for the first fourteen days. Between 2007 and 2011, four investigations have utilized the possibility for pre-trial detention without the criterium of a grave presumption (Van Gestel et al, 2014: p. 47 and 69). This was done to prevent a possible acute threat and to improve the investigation of basic intelligences. Three investigations were based on a suspicion and one on indications. Pre-trial detention offered the police and the Public Prosecution Service more time to investigate whether there were serious objections (Van Gestel et al, 2014: p. 48). Furthermore, threats could be effectively excluded. However, the measure did not lead to a grave presumption or a successful prosecution (Van Gestel et al, 2014: p. 48-49).
4.3.2 Implementation aspects
35
The indication criterium for the application of special investigative powers
There are several possibilities to respond to signals of terrorism in practice. Threatening situations often lead to the reasonable suspicion criterium. Some indication investigations were changed to a reasonable suspicion investigation, because of the wish to arrest individuals (based on estimations of threats and not on additional information). To exclude the risk, these individuals were remanded in custody without a grave presumption (Van Gestel et al, 2014: p. 40 and 57). Investigations can only last for a certain time when there is a lack of suspective information and the indication criterium enabled a longer continuation of the application of special investigative powers on the basis of a limited amount of information (Van Gestel et al, 2014: p. 9). In one case, the adjustment from a reasonable suspicion to an indication led to a renewed reasonable suspicion and eventually to a prosecution of the suspect (Van Gestel et al, 2014: p. 58).
Security risk areas and exploratory investigation
Regarding the security risk areas, already existing powers are more often applied in practice (like asking for someones identification card) due to difficulties in assessing whether deviant behaviour has a terrorist origin. Another reason for applying already existing powers is that the legislator determined earlier that the implementation of the act is a responsibility of the local triangle (consisting of the public prosecuter, mayor and police chief). Initially, it was not clear whether the police could search in permanent security risk areas without the consent of municipalities. Agreements about this have been made in the meantime and the searching in security risk areas now requires the utilization of routines and methods that are developed in dialogue with local authorities (Van Gestel et al, 2014: p. 58). It can only be done with the authorization of both the mayor and the public prosecutor (Van Gestel et al, 2014: p. 51).
Based on the legal possibilities offered by the exploratory investigation, certain information was gathered from the tax authorities and the customs regarding the supposed connection between the trading in qat and the funding of an Islamic terrorist organisation. The information was also linked and compared. No further exploratory investigations were held. Some concrete information regarding the involvement is often already available which enables regular criminal investigations on the basis of indications or on the basis of a suspicion. With regard to the planning of terrorist offences by organisations, information can already be acquired, because there are already leads for detection (Van Gestel et al, 2014: p. 36 and 68).
Remand in custody in case of a suspicion
It was often not clear whether the reasonable suspicion or the grave presumption criterium should be used in practice. For example, one investigation based on a reasonable suspicion turned into a grave presumption due to a wrong formulation (Van Gestel et al, 2014: p. 48). Nevertheless, before the introduction of this measure, there was often a dilemma for the Public Prosecution Service. Information revealed that an individual formed a serious risk, but there were no possibilities to arrest him or her. This measure enabled investigation possibilities. As a consequence of the remand in custody, risks could be excluded (idem.).
4.3.3 Efficiency aspects
The indication criterium for the application of special investigative powers
36
The early start of investigations and the application of special investigative powers based on indications did often not lead to the gathering of sufficient criminal evidence for a reasonable suspicion, a grave presumption or a successful prosecution (Van Gestel and De Poot, 2014: p. 11). Long-term investigations are forced to stop on a certain moment due to capacity problems, insufficient time, changed priorities within investigative services and the lack of prospects for additional and sufficient evidence regarding a potential terrorist attack. And besides, this also applies to long-term investigations that started on the basis of a reasonable suspicion. An example of an investigation with such problems was an investigation to connections between a Dutch man and an international terrorist organisation. The investigation led to new indications about his travels and contacts with networks and other individuals that were related to terrorist activities. This investigation was, however, stopped due to a lack of concrete plans to commit a terrorist attack (Van Gestel and De Poot, 2014: p. 42 and 44). Indications remain, but further action is not deemed possible as a consequence of a lack of concrete evidence. Furthermore, following individuals during an investigation based on indications is expensive. It requires a long interval and a large capacity of investigative services often without the prospect of a successful prosecution. A public prosecutor that was interviewed during the WODC evaluation about the time aspect in investigations to terrorist crimes and terrorist groups (Van Gestel et al, 2014: p. 43):
~Public prosecutor~
“If the threat is not acute, you have a problem: when does one proceed to the actual execution of ones original plan and do you have sufficient information to speak of a preparation of a terrorist crime? During some investigations, you are witnessing something that is simmering and simmering before something happens. You never know, or almost never know, when the moment is there. Those people are not in a hurry, they have time, it is not about the money, they do not have to earn that, so it is unclear whether they intend to do something and when they will do something. You are quite sure that something is going to happen, but this year or in 2012”
Short-term investigations based on indications and aimed at judging and excluding risks were carried out as they require less efforts (Van Gestel et al, 2014: p. 11).
Security risk areas and exploratory investigation
Investments have been made for the protection of Schiphol Airport. Two armed special investigative officers drive around Schiphol in armoured vehicles to protect the airport. This occurs permanently. These officers belong to the Exterior Surveillance Schiphol. The primary focus is emphatically on terrorism-related threats. This did not, however, lead to information that can be used for terrorism- related criminal investigations (Van Gestel et al, 2014: p. 51). There were attempts to apply the searching powers within four big train stations, but the execution leads to coordination problems with the local triangles. National police services work on a national level, but agreements with local authorities are required regarding the concrete execution in a municipality. Some local authorities demand that they are informed before the searching powers can be applied by investigative officers. Immediately acting and searching based on the new act is not possible in those municipalities. These coordination efforts require a lot of time, energy and capacity (Van Gestel and De Poot, 2014:p. 54).
The information regarding the supposed connection between the trading in qat and the funding of an Islamic terrorist organisation could quickly be acquired from the tax authorities and the customs. The
37 efforts of the involved actors (capacity and time) did not lead to additional information. Besides this case, there were no cases in which the exploratory investigation was expected to be a way to find additional information to start a regular investigation (Van Gestel and De Poot, 2014: p. 35). Basic information often provides enough to start a regular investigation. A police officer that was interviewed in the WODC evaluation (Van Gestel and De Poot, 2014: p. 36):
~Police officer ~
“The basic information that is provided to us, is often sufficient for a suspicion or an indication. Why would you initiate an exploratory investigation?”
Furthermore, quickly gathering identifying information was already possible in case of indications or suspicions of the existence of a terrorist organisation (idem.).
Remand in custody in case of a suspicion
The average costs for a prisoner were 217 euros per day in the Netherlands in 2010. Moreover, detaining potential terrorists is more expensive due to a more intensified control (Nauta, Moolenaar and Van Tulder, 2010: p. 263). Despite these costs, long-term investigations also require a large capacity (financially, time span and number of officials) if one wants to permanently observe an individual that forms a big threat. One investigation used the remand in custody to control the threat at a lower cost. The remand in custody was not extended, but the suspect was eventually extradited to another country (Van Gestel and De Poot, 2014: p. 48).
4.4 Application of the methods: political realm
4.4.1 Consequences of the act for the governmental reputation In 2017, 70% of the Dutch population indicates to be sometimes concerned about a terrorist attack in the Netherlands. 16% indicates to be often concerned about this. Nevertheless, nearly 75% of the Dutch population believes that it is unlikely to become a victim (Kloosterman and Moonen, 2017: p. 6). Regarding counterterrorism measures, the fight against terrorism is seen as an important European task. The SCP reported in 2007 that 82% of the European population and 88% of the Dutch population is a proponent of a common European approach to tackle terrorism (SCP, 2007: 48 and 58). Two data-gathering strategies will be used to provide for a general picture of the consequences of the act for the governmental reputation. First, the results of the two biggest Dutch opinion polls at the time (‘Politieke Barometer’ and ‘De Hond’) will be displayed in order to provide for an overview of the differences in the allocation of seats for the coalition parties (parties that form the cabinet, the initiator of the act) just before and after the announcement and acceptance in the First and Second Chamber. Regarding the acceptance in the First and Second Chamber, the results in the allocation of seats will also be displayed for the only party that voted against the act (GreenLeft). The scepticism of GreenLeft about the act developed during the parliamentary debates and was not instantly present after the announcement of the act. The second way is about the provision of an overview of relevant press reports about the act. Five major national newspapers will be consulted for this.
Legislative proposals receive the most media attention during their announcement and acceptance in the chambers. Nevertheless, 80% of all Dutch legislative proposals receives no media attention at all (Melenhoorst, 2017). The act has been one of the major changes to the Dutch criminal law (Mevis, 2013: p. 305). As a consequence, several national newspapers paid attention to the act which
38 possibly affects the allocation of seats for the coalition parties. This may paint the picture about the popularity of the policy (Marsh and McConnell, 2010: p. 571 and McConnell, 2010: p. 356). Regarding the act, this study will take the announcement and the acceptance in the First and Second Chamber into account. The acceptance of the act in the First Chamber on 14 November 2006 coincidenced with the Second Chamber elections on November 22, 2006. Therefore, the results of 22 November are actual election results. The results of the opinion polls before and after the announcement (17 June 2005) and acceptance of the act in the Second Chamber (23 May 2006) and First Chamber (17 November 2006) are displayed in the tables below (Allepeilingen, 2017).
Results before and Date Difference after the announcement of the act on June 17, 2005 Party (opinion poll) 1 June 2006 1 July 2006 D66 (De Hond) 4 seats 3 seats -1 D66 (Politieke 6 seats 4 seats -2 Barometer) CDA (De Hond) 33 seats 33 seats 0 CDA(Politieke 34 seats 27 seats -7 Barometer) VVD (De Hond) 21 seats 20 seats -1 VVD (Politieke 23 seats 24 seats +1 Barometer)
Results before and Date Difference after the acceptance of the act in the Second Chamber on May 23, 2006 Party (opinion poll) 13 May 2006 1 June 2006 D66 (De Hond) 3 seats 3 seats 0 D66 (Politieke 4 seats 3 seats -1 Barometer) CDA (De Hond) 29 seats 33 seats +4 CDA(Politieke 31 seats 36 seats +5 Barometer) VVD (De Hond) 35 seats 32 seats -3 VVD (Politieke 34 seats 32 seats -2 Barometer) GreenLeft (De Hond) 8 seats 8 seats 0 GreenLeft (Politieke 8 seats 8 seats 0 Barometer)
Results before and Date Difference after the acceptance of the act in the First Chamber on November 14, 2006
39
Party (opinion poll) 3 November 2006 22 November 2006 (election results) D66 (De Hond) 2seats 3 seats +1 D66 (Politieke 2 seats 3 seats +1 Barometer) CDA (De Hond) 44 seats 41 seats -3 CDA(Politieke 46 seats 41 seats -5 Barometer) VVD (De Hond) 23 seats 22 seats -1 VVD (Politieke 24 seats 22 seats -2 Barometer) GreenLeft (De Hond) 6 seats 7 seats +1 GreenLeft (Politieke 6 seats 7 seats +1 Barometer)
Five national newspapers were consulted to provide for an impression of the public attitude towards the act and towards terrorism in general. These newspapers were selected based on the number of readers, availability of news during the (initiation of) the act and reliability of utilized sources within their press reports. The newspapers that were consulted are (Andeweg and Irwin, 2009: p. 31):
De Volkskrant (a major national newspaper with a catholic origin); Trouw (a major national newspaper with a protestant origin); NRC Handelsblad (a major national newspaper with a liberal background). Het Parool (a major national newspaper with a socialistic background) Het Algemeen Dagblad (a major national newspaper)
Britta Böhler (lawyer of Volkert van der Graaf, the murderer of Pim Fortuyn) was interviewed in Trouw in September 2004 after the cabinet announced that a code of criminal procedure will be developed regarding terrorist crimes (the act). She analysed constitutional processes in the light of recent events and an important illustration was the act. She noticed a lack of societal criticism regarding the act while important rights are at risk. Citizens have to answer the question whether they advocate privacy or safety. Citizens would not, however, be aware of the extensiveness of preventive searching and the indication criterium according to her (El Ayadi, 2004). The Volkskrant reported in November 2004 that the majority of the Dutch population finds everything allowed to tackle Muslim extremists. This stemmed from a survey of Motivaction. Terrorism should be addressed and everything should be aimed at prevention. The governmental powers should be extended and centralised. The citizen should behave in a way that the government can perform this task properly (Van Gunsteren, 2004). Trouw reported in April 2005 that there was an increase in fear among the Dutch population regarding terrorism between 2002 and 2005. Many citizens see terrorism as the biggest world problem according to the national freedom research which was ordered by the National Committee 4 and 5 May. The Dutch population showed less solidarity and tolerance as a consequence. The research was executed among ‘a representative sample of thousand people above 13’ according to the researchers (Trouw, 2005). Trouw further reported in August 2005 that over 33% of the population believes that the government takes insufficient measures to prevent terrorist attacks. The same percentage thinks, however, that the government takes sufficient measures to prevent terrorist attacks. This turned out of a survey of ‘De Hond’ (Trouw, 2005). The
40
Volkskrant reported in October 2005 that the Dutch population notices little of the counterterrorism measures of the government according to a survey of TNS NIPO. A minority of 31% of the Dutch population found that sufficient counterterrorism measures were taken after the murder on Theo van Gogh and the terrorist attacks in Madrid (Volkskrant, 2005). Several counselors and the vice- president of the Dutch Supreme Court were interviewed by the NRC in April 2006. Counselor Jan Ilsink noticed that within the public debate, the punishments can not be severe enough and it seems to be logical to infringe on personal rights when tackling terrorism. He criticized the act, the increasing regulation of terrorism in general and the lack of argumentation regarding the supposed limitations of the existing legislation. Geert Corstens, Jeppe Balkema (both counselors of the Dutch Supreme Court) and Carel Bleichrodt (vice-president of the Supreme Court) also noticed a repressive development. One wants more punishments, longer punishments and more severe punishments. Geert Knigge (Advocate General of the Supreme Court) called the act a balancing wonder towards the rule of law (Van Westerloo, 2006). Edwin Bakker (the first Dutch professor in Terrorism and Counterterrorism at Leiden University) was interviewed by the Volkskrant in January 2007, just before the coming into force of the act. He noticed a repressive trend regarding counterterrorism measures, especially in public and political debates. He also argued that after the murder on Theo van Gogh, everyone raised questions about why the culprit was not continuously observed (Groen and Kranenberg, 2007). Hans Franken (a professor in Information Law at Leiden University) and Geert Munnichs (privacy investigator of the Rathenau Institute) were interviewed by Trouw on December 29, 2008. Franken argued that the counterterrorism measures that contain extended powers are not proportional and not efficient. There is a broad societal call for stringent counterterrorism measures and extended powers. The government concedes to this call and wants to act in a decisive way. The parliament does not stand against these governmental attempts. In addition, Munnichs argued that citizens strive for a harmless society. According to opinion polls, citizens are prepared to offer their privacy if crimes can be solved as a consequence. That is the reason why many citizens agree with more stringent counterterrorism measures. Munnichs argued that citizens often do not realise the confined added value of extended powers to the national security (Boon, 2008). Beatrice de Graaf (terrorism expert and professor in the History of International Relations and Global Governance at Utrecht University) acknowledged the results of the research that disclosed an increase in the fear of risks among the Dutch population in an interview with NRC in December 2010. She argued that one thinks that we live in a risk society and citizens demand more protection as a consequence. The Dutch population scores very high in the fear of risks from an international perspective. Dutch citizens seem to be prepared to sacrifice privacy and equality of rights if this leads to a better security. As a consequence, measures are taken in an earlier stage to prevent possible future risks and the act is a good example of this. De Graaf called the lack of societal criticism regarding preventive measures remarkable as the effects of these measures are unsure while it is impossible to guarantee 100% safety (De Graaf, 2010). De Graaf was again interviewed in Trouw in September 2011. Here, she noticed a process of securitization after 9/11: security has become an important issue on the policy agenda and receives much media attention. Attention to security issues would improve electoral prospects. Moreover, preventive regulation aimed at terrorism like the act has become popular. These particular measures can be applied at an earlier stage and are no longer aimed at a concrete threat, but at a general feeling of insecurity. Citizens broadly support preventive regulation that is argued to offer protection against terrorism. They are prepared to turn in privacy and equality before the law for a better security (De Graaf, 2011). For example, Trouw and ‘het Algemeen Dagblad’ reported in June 2013 that 73% of the Dutch population finds it ‘no problem’ if
41 the government taps radio- and telephone traffic for the prevention of terrorist attacks. This became apparent from a ‘representative sample among 2000 Dutch persons’ initiated by ‘De Hond’ (Algemeen Dagblad, 2013 and Trouw, 2013). Liesbeth van der Heide (researcher at the Institute of Security and Global Affairs in Leiden and research fellow at the International Centre for Counter- Terrorism) argued in an interview with ‘Het Parool’ in 2016 that the broad political support for stringent counterterrorism measures stems from feelings of fear among the population. She further argued that the platform possibilities for terrorists have increased due to the human tendency to exaggerate (the consequences of) terrorist attacks and the willingness to share terrorism-related information on social media (Van der Heide, 2016).
Chapter 5 Analysis: determining the degree of policy success
5.1 Determination of process success
5.1.1 Strength and duration of the coalition of proponents Most of the contributions made by the political parties and the consultative actors related to the indication criterium for the application of special investigative powers, the security risk areas and
42 exploratory investigation, the remand in custody in case of a suspicion and delaying a full inspection of procedural documents. Six patterns are striking:
regarding the act in general, the CDA and VVD seem to be the most positive (coalition) parties, while D66 seems to be the most negative coalition party; regarding the act in general, the SGP and LPF seem to be the most positive opposition parties, while GreenLeft seems to be the most negative opposition party; despite the lasting critical attitude of the SP, this party eventually voted for the act; the sunset clause was a big point of concern in the First Chamber compared to the Second Chamber; the sceptical advices of the consultative actors and the initial sceptical attitude of the political parties in which concerns about infringements of human rights clearly emerged; the eventual voting pattern in the First and Second chamber after the answering of the minister.
The CDA and VVD were arguably the most positive (coalition) parties. The CDA and VVD did not only acknowledge the importance of the (preventive) target of the act, but also found the general act a necessary and logical subsequent step in addition to (more material) acts. The CDA found the act a way to protect the rule of law. They also found existing legal possibilities insufficient. D66 was arguably the most critical coalition party and needed to be convinced about the effectivity, necessity and proportionality before being able to accept the act. The SGP and LPF were arguably the most positive opposition parties due to the lack of serious criticism and positive appreciation of the answering of the minister. The most critical party regarding the act was GreenLeft as it found that the necessity of neither the general act nor the separate measures had been demonstrated. Furthermore, it was the only party who voted against the act. The criticism of GreenLeft may be related to an observation that was made in paragraph 2.2. Doing something about complex problems with no clear solutions and causes is often done to show the citizens that something is done about the problem. The SP expressed serious criticism in both the First and Second Chamber. This party initiated the most amendments, but they were all rejected. Furthermore, the SP stated in the First Chamber that the party is not enthusiastic about the act. Nevertheless, it recognizes the serious consequences of terrorist attacks and the importance of prevention. As a consequence, the party voted for the act in the First and Second Chamber (Handelingen 2005/06, 30164, item. 81: p. 5007 and Handelingen 2006/07, 30164, item. 7: p. 275). The sunset clause was a big point of concern in the First Chamber for the PvdA compared to the Second Chamber. It initially seemed to be an absolute condition for the PvdA before being able to approve the act due to the insufficient motivation about its necessity and effectivity (a fundamental criticism). The same could be said about the legal determination of an evaluation provision. The promise of the minister to hold an integrative evaluation seemed to be an important condition for several parties in order to be able to approve the act. The advices of the consultative actors were critical. Both coalition parties and opposition parties were also critical on the act before the answering of the minister. There were concerns about possible infringements of human rights. It is important to remember that the Netherlands, as a member of the Council of Europe, seeks to obey the EVRM and human rights in general. A human rights approach requires that limitations on human rights need to be proportionate. Interferences with human rights are only allowed if the interferences constitute a legitimate limitation on the right
43 in question (Clapham, 2015: p. 99). A three-stage process needs to be followed in order to determine this (Clapham, 2015: p. 100):
the interference should serve a legitimate aim the existence of an accessible and clear law that prescribes the interference the interference should be proportionate to the identified legitimate aim and should be necessary in a democratic society.
The human rights approach thus requires a government that justifies its interventions in realms affecting the well-being of people. Furthermore, the justification should comply with the rule of law in a democratic society (Clapham, 2015: p. 101). The use of infringing special investigative powers based on a lighter criterium together with the additional measures may cause interferences with Articles 5 (right to liberty and security), 6 (right to a fair trial) and 8 (right to respect for private and family life) EVRM. There is a tension between the governmental duty to protect its citizens against terrorist attacks (related to the right to life of all citizens for example) and the protection of the rule of law and human rights (the rights stemming from articles 5, 6 and 8 EVRM regarding the suspect). The act would serve as the law that prescribes the interference. Whether the other two criteria are met, was, however, questioned by several consultative actors (especially the NOvA, CBP and RvdR) and political parties (especially GreenLeft and initially also the PvdA). To put it differently, these actors questioned whether the act is really necessary and proportionate in protecting the society from threats to national security and crime. For example, systematic observation and the recording of telecommunication are examples of special investigative powers that clearly interfere with privacy rights. The question is whether these measures can be justified on the basis of a lighter criterium (indication criterium) to protect the society from threats to national security and crime. The mentioned actors would arguably answer this question negatively as the vague character of the indication criterium may lead to tensions with article 8 EVRM. Another potential tension between human rights regards the use of the reasonable suspicion criterium for the remand in custody instead of the grave presumption criterium for terrorist crimes. The balance made by the cabinet between protecting the society from threats to national security and crime and articles 5 EVRM was unjust according to the PvdA. Finally, the implications of a delay of a full inspection on procedural documents may have implications on the review possibilities for the judge as he or she may not be able to hold a review. This causes tensions with articles 5 and 6 EVRM. Regarding the indication criterium, most consultative actors were critical on the added value of the indication criterium, its vagueness and the supposed limitations to existing legislation. This leads to difficulties for judges and possible tensions with international treaties as the information is often based on soft information. Initially, political parties (like D66 and several opposition parties) expressed the same concerns. These criticisms and the supposed infringements of human rights are serious as it relates to the justification of the measure in general. Most parties (except for GreenLeft) were, however, apparently impressed about the answering of the minister who pointed to the severe character of terrorism, application requirements (possibilities to verify, proportionality and subsidiarity) and the practical need for a lighter criterium. As a consequence, the criticism decreased and the indication criterium was included in the eventual approved act. The main criticism regarding the searching powers (expressed by D66, the PvdA and GreenLeft) related to racial profiling and searching based on other interest than terrorist crimes. The CPB and NOvA were arguably the most criticial consultative actors regarding the exploratory investigations as they questioned the added value of this measure in general. Several parties also expressed concerns about the extensiveness of the exploratory
44 investigation in the Second Chamber. The CDA agreed with the necessity of exploratory investigation in both the First and Second Chamber. Nevertheless, it was more concerned in the First chamber as it pointed to societal unrest and the risk that non-subjects will be subjected to exploratory investigations. The guarantees made by the minister in his answering were, however, again sufficient as this part of the act is not further discussed afterwards and included in the eventual act (Van der Woude, 2010: p. 266). Regarding the advises of the consultative organisations about the remand in custody in case of a suspicion, there were concerns about the incentive to investigate efficiently and the increased reponsibility of the judge due to the delay in a full inspection of procedural documents. This concern was shared by the VVD and PvdA. The criticism of coalition party D66 (supported by GreenLeft) was once again fundamental as it questioned the added value of the reasonable suspicion criterium for the remand in custody in general. This criticism should be seen in the light of the tensions with articles 5 and 6 mentioned earlier. A final criticism related to an insufficient motivation regarding the two-year term. This concern was shared by coalition parties D66 and CDA. This criticism decreased, however, after the response of the minister that related to a balance that had to be made between increased investigative possibilities and a lack of a total limit for this possibility. The First Chamber criticism of the CDA, D66 and PvdA related more to an unclear difference between the reasonable suspicion criterium and the grave presumption criterium. Like in the second chamber, the position of the judge and the possibilities to review the continuation of a remand in custody received much attention. Still, the answering of the minister led to the approval of the act by all parties except for GreenLeft. Despite a lack of empirical foundation regarding the adequacy of existing legal possibilities and the necessity of the extended powers, political parties could (partly) come to terms with the ministerial view. The point that parties could come to terms with the ministerial view emerges greatly from a statement from a CDA member (Handelingen 2006/07, 30164, item 5: p. 172):
~Rob van de Beeten (CDA)~
“When it was announced in september 2004 that something like this (the act) would be proposed, I had serious reservations, but I must acknowledge that due to the discussion in parliament and the answering of the questions, I became more and more reassured”
The fact that most consultative organisations criticized the basic reasons for initiating the measures, should lead to the conclusion that it would be very hard to build a coalition if these consultative organisations would take the decision. It would not be impossible as the Council of Attorneys- General is far less critical than the NOvA for example. The consultative actors do not, however, take the eventual decision. The changing attitude during the parliamentary debates due to the answering of the minister led to all parties being prepared to accept the act. As of 2018, the act is still applicable. Furthermore, a new legislative proposal was sent to the Council of State in 2017 with additional measures. One of these measures is about the extension of the remand in custody in case of a reasonable suspicion to a period of 30 days. This proposal was sent by the cabinet in response to a motion of Diederik Samson (PvdA) and Gert-Jan Segers (CU) (Stcrt, 2017: p. 4). Despite criticism of the consultative parties, the act can arguably best be categorized in the resilient success category regarding the strength and duration of the coalition of proponents.
5.1.2 Number and size of adjustments to ex ante determined governmental objectives and means The cabinet strived for an important role for criminal law in preventing terrorist attacks. The act should enable this desire. The number and size of adjustments to ex ante determined governmental
45 objectives and means turned out to be minimal. Out of seven amendments and one motion, only one amendment and the motion were accepted. Moreover, one of the initiators of the accepted amendment was a member of coalition party VVD and the Minister of Justice explicitly agreed with this amendment. Only ‘Groep Wilders’ (one seat) was against the amendment. The accepted motion was also supported by all parties except for ‘Groep Wilders’. Furthermore, the minister acknowledged the importance of this addition. In other words, all coalition parties and the minister supported the accepted amendment and motion. The minister explicitly advocated against the remaining amendments and none of them was supported by a coalition party. Moreover, none of them came close to being accepted. With the exception of GreenLeft, the parties that supported the rejected amendments eventually agreed with the act. As a consequence of the mentioned points, the ex ante determined governmental objectives and means are retained. The small modifications that were initiated, were (strongly) supported by the coalition parties and the minister. This indicator can be perceived as a process success.
5.1.3 The seriousness and duration of challenges to the legitimacy in the formation of choices The Netherlands is a democratic state that seeks to respect the rule of law. As a consequence, the cabinet needed to follow legal and consultative procedures based on democratic values, deliberation and accountability. The act has been discussed in the First and Second Chamber. Seven organisations were asked to provide for a written advice, but two of them failed to do so. The consulted organisations that provided for an advice were delighted that they were given this opportunity (NVvR, 2004: p. 1 and NOvA, 2004: p. 1). The CBP was somewhat critical on the short time-limit for providing for an advice (CPB, 2004: p. 1). It is striking that Muslim organisations (like the ‘contact institution Muslim and Government’ (CMO)) were not formally requested to provide for an advice. Moreover, they were not mentioned during the parliamentary debates. This is remarkable in the light of the concerns of several parties (for example D66, PvdA and GreenLeft) about racial profiling. Regarding the appreciation of the legislative process, Wim van Fessem (CDA) argued that it has rarely happened that a legislative proposal has been discussed so extensively in the chambers (Handelingen 2005/06, 30164, item 79, p. 4938). Several appreciations were expressed regarding the legislative process in the First and Second Chamber by both coalition and opposition parties. Especially the minister was praised. The legislative process can arguably be perceived as successful while there were some shortcomings regarding the consultative process. The shortcomings were only small and there were no lasting challenges to the legitimacy of the policy. Hard and controversial issues regarding the legitimacy could not be deduced from the parliamentary papers, advices and press reports. As a consequence, this indicator will be assessed as a resilient success.
5.2 Determination of program success
5.2.1 Degree to which the ex ante determined policy output target level is achieved in time The ex ante policy output target level of the indication criterium to apply special investigative powers is ‘to detect suspects more effectively and to prosecute suspects more successfully’. This will be stimulated by enabling the police and Public Prosecution Service to deploy investigative powers earlier and to let the investigation last longer. In this way, the Public Prosecution Service and the police are better able to gather information about terrorist offences (Van Gestel et al, 2014: p. 7). In general, it can be deduced from the figures that the use of the indication criterium for applying special investigative powers did not lead to a more effective investigation and detection of terrorist crimes or to a considerable success in prosecution figures. Long-term investigations had to be
46 stopped due to capacity problems, changed priorities and a lack of information about a concrete plan to commit a terrorist attack. Only one out of 15 investigations led to a prosecution on the basis of a suspicion for preparing a terrorist offence, but the suspect is absconded. One investigation was temporarily stopped, because of the fact that the suspect had gone abroad for a longer period. There were some arrests, but these individuals had to be released within two weeks due to a lack of sufficient evidence. The remaining investigations were all stopped due to a lack of criminal evidence. Nevertheless, risks that are connected to indications of terrorist offences could be effectively decreased or excluded with certainty in short-term investigations. Short-term investigations with the objective to assess risks and to exclude them are working sufficiently which is enabled by the broadening of the legal powers. Nevertheless, this did not lead to prosecutions as the threats appeared to be non-existent or related to other crimes without serious threats. The investigations make clear that the police and enforcement agencies are often using already existing legal powers like house visits to assess situations and threats. This applies to both the indication criterium for applying special investigative powers and to risk areas (for example by asking for identification documents). As a consequence, the possibility for searching persons, vehicles and objects in risk areas has been applied only limitedly. There were no temporal risk areas established and the body search possibility is only used in the outer area of Schiphol Airport. This did not, however, lead to information that could be used in terrorism-related criminal investigations. No further action was undertaken to a small number of cases that could be related to possible terrorist crimes. The WODC evaluation concludes that the first assumption (already existing police powers do not enable the police to adequately and immediately investigate indications of area related terrorism threats) seems to be at odds with the application in practice (Van Gestel and De Poot, 2014: p. 55). The second assumption (the police could insufficiently investigate independently from local administrations.) turns out to be incorrect as well due to the coordination with local authorities that is still required (Van Gestel et al, 2010: p. 68). The exploratory investigation was used only once. This did not, however, lead to additional insights regarding the possible involvement of persons in terrorist crimes (sufficient for indications, suspicions or prosecutions). Regarding the remand in custody, the first assumption was met as investigative services were offered more time to investigate the existence of a grave presumption. The second assumption was partly met as it reduced possible risks of releasing suspects. One out of four investigations led to the suspect being expelled from the country (Van Gestel et al, 2014: p. 59). The extra time did not, however, provide information consisting of a grave presumption for the remaining investigations. As a consequence, it did not lead to an extension of the pre-trial detention or to a prosecution. All investigations were stopped and the suspects were released due to a lack of evidence. (Van Gestel et al, 2014: p. 69). There were no circumstances that required a delay of a full inspection of procedural documents as all investigations were completed within three months. The WODC evaluation concludes that most assumptions regarding limitations of existing legislation seem to be incorrect (Van Gestel et al, 2014: p. 70). The degree to which the ex ante determined policy output target level is achieved in time falls short in practice. The ex ante policy output target levels of the act in general and of most separate measures are not achieved. There are manifest examples of failures, most measures are hardly used and some measures are not used at all. There are only minor achievements (one prosecution and excluding risks with short-term investigations). As a consequence, the indicator regarding the policy output target level will be assessed as a precarious success.
5.2.2 Degree to which the implementation is in line with objectives
47
The difficulty in distinguishing between the indication and reasonable suspicion criterium in practice was predicted by scholars (e.g. Mevis, 2013) and also stemmed from the legislative process. Indeed, the difference between the suspicion criterium and the indication criterium turned out to be small in practice, especially in case of a big and acute threat. There exists a big marge regarding the judgment of starting information on the basis of which a decision is made about the sufficiency of indications. It turned out to be hard to connect a criterium to starting information in a coherent way. Comparable signals led the application of special investigative powers based on a reasonable suspicion and on indications as a consequence. Furthermore, the changing between an indication and a reasonable suspicion criterium also occured in practice. The WODC stated that it is unsure whether this fits the intention of the law (Van Gestel and De Poot, 2014: p. 58). Regarding the security risk areas, officers bemoaned the difficulty in assessing whether deviant behaviour can be classified as having a potential terrorist nature. There is a danger that the searching powers will swell as a consequence (Van Gestel et al, 2014: p. 54). This turned out to be an important justification for not applying the measure at all in other areas. Another reason for not establishing security risk areas are the coordination problems with local authorities. Regarding the exploratory investigation, threatening signals related to terrorism often did not require this possibility. Some concrete information regarding the involvement is often already available which enables regular criminal investigations on the basis of indications or on the basis of a suspicion. The exploratory investigation seems to be rather unnecessary in practice. The difference between the reasonable suspicion and grave presumption criterium for a remand in custody was criticized during the First Chamber debates. Indeed, the application of the remand in custody in case of a suspicion revealed that it is hard to distinguish between the reasonable suspicion and grave presumption criterium in practice. Nevertheless, the remand in custody based on the reasonable suspicion criterium enabled better investigation possibilities and a better ability to exclude risks. The degree to which the implementation is in line with objectives seems to be disappointing in practice. The implementation of most measures turns out to be prone to unclear definitions and coordination problems. Moreover, most measures are hardly used and some measures are not used at all. There exists only minor progress regarding the implementation objectives (marginal improvement in investigative possibilities and some improvement in excluding risks). As a consequence, the indicator regarding the implementation of the measures will be assessed as a precarious success.
5.2.3 Degree to which the efficiency criteria of actors involved are met Indications often remain indications despite the efforts (financially, time span and number of officials) of investigative services to disclose facts and circumstances that point at the planning of terrorist attacks (Van Gestel and De Poot, 2014: p. 11 and 42). Moreover, following individuals during investigations is expensive, requires a lot of time and is often difficult to justify due to bleak perspectives for finding sufficient information. Nevertheless, it proved possible to efficiently carry out short-term investigations based on indications and aimed at assessing and excluding risks. These investigations require less capacity and time and seem to work as intended. The investments that were made regarding Schiphol Arport (officers belonging to the Exterior Surveillance Schiphol that handle terrorist related threats) have not led to information that can be used for terrorism-related criminal investigations. Moreover, the coordination efforts with local authorities require a lot of time and capacity. This is an important ground for not applying searching powers in other areas. Regarding the exploratory investigations, there were hardly any cases in which the exploratory investigation was expected to be an efficient way to find additional information. Regarding the remand in custody,
48 holding prisoners is expensive, but permanently observing individuals that form a threat is even more expensive. As a consequence, there was one case in which the remand in custody was a more efficient way to control the threat. In general, the degree to which the efficiency criteria of actors involved are met suffers from the high costs of the measures and the bleak perspectives for finding sufficient information in order to prosecute suspective individuals. Most measures are hardly used and some measures are not used at all. There are some small successes (efficiently excluding risks with short-term investigations and the example of the remand in custody), but the act does not seem to accomplish its general targets in an efficient way. Moreover, the WODC evaluation also concluded that the act did not contribute to a more efficient investigation of terrorist crimes. During investigations based on indications, the indications are often confirmed and remain, but the earlier start does not lead to a more prosperous investigation resulting in the gathering of sufficient criminal evidence (Van Gestel et al, 2014: p. 11 and 60). As a consequence of the mentioned points, the indicator regarding the efficiency criteria will also be assessed as a precarious success.
5.3 Determination of political success
5.3.1 Degree to which the positive consequences of the policy for the electoral prospects and reputation of government and leaders outweigh the negative consequences The opinion polls do not show a significant increase in the number of seats of the coalition parties. Except for the acceptance in the Second Chamber in which the coalition parties won three seats, the coalition parties generally lost seats. The aggregative loss amounts to seven seats regarding the announcement and nine seats regarding the acceptance in the First Chamber. Moreover, the results for the strongest opposition party were slightly more positive as the party won one seat after the acceptance of the act in the First Chamber. Regarding the election results of the First Chamber, many policies were discussed during the election and many policies received media attention. As a consequence, the differences in the allocation of seats just before and after the acceptance of the act in the First Chamber depend on too many aspects to provide for a reliable picture of a possible causal relation regarding the political consequences of the act. Nevertheless, it is safe to argue that the electoral prospects are not manifestly increased when one looks at the results of the opinion polls (political success). Furthermore, the results are too negative to speak of ‘only small reversals’ (resilient success) or even of an equally strong support and opposition (conflicted success). Following the opinion polls, the precarious success category seems to be the best fitting category as there are only marginal beneficial consequences for the electoral prospects while the consequences are largely detrimental. The five national newspapers give a more positive impression regarding the degree to which the positive consequences of the policy for the electoral prospects and reputation of government and leaders outweigh the negative consequences. Partly during the legislative process of the act (2002-2005), the fear among the Dutch population regarding terrorism increased and many citizens classify terrorism as a significant problem. In 2017, 70% of the Dutch population indicates to be sometimes concerned about a terrorist attack out of which 16% indicates to be often concerned about this. Attention to security issues would improve electoral prospects as there seems to be a broad societal call for more stringent counterterrorism measures, especially preventive counterterrorism measures. This stems from several surveys and comments of professors in the field. Governmental powers should be extended in general. Only a third of the Dutch population believes that the government took sufficient counterterrorism measures after the murder on Theo van Gogh and the terrorist attacks in Madrid. This stemmed from two surveys (TNS NIPO and ‘De Hond’). It is therefore not a surprise that there seems to be a lack of societal criticism regarding preventive
49 counterterrorism measures in general and regarding the act in particular. There were no noteworthy protests. Several experts in the field emphasized this. Several experts (professors, counselors and the vice president of the Dutch supreme court) noticed a repressive development in general, also in the public and political debates. It seems increasingly rational to extend governmental powers when tackling terrorism, also if this infringes on personal rights. Moreover, many citizens are prepared to offer some privacy if crimes can be solved as a consequence. For example, a measure that is closely related to the act (the tapping of radio- and telephone traffic) received broad societal support (73%) in 2013 if this contributes to the prevention of terrorist attacks. Considering the mentioned points that stemmed from an analysis of the newspaper articles, the electoral prospects or reputation of governments and leaders should generally increase. Only a minority thought that the existing legislation already provided sufficient possibilities to tackle terrorism. Regarding the analysis of the newspapers, the resilient success category seems to be the most appropriate one. This study will give the same weight to both data-gathering methods (opinion polls and newspaper articles). The merging of the precarious success and resilient success categories will therefore result in the conflicted success category for the political indicator.
5.4 Determination of policy success: summarized results The results of the evaluation of the act for the different policy realms are summarized and represented in the table below.
Process success Indicators Valuation Strength and duration of the coalition of Resilient success proponents - a sceptical attitude of consultative actors and an initial sceptical attitude of most political parties - most political parties were (very) satisfied with the answering of the minister. Except for GreenLeft, all opposition parties and coalition parties voted for the act as a consequence - the act is still applicable in 2018 - the initiation of a new legislative proposal that goes further than the evaluated act Number and size of adjustments to ex ante Process success determined governmental objectives and means - the number and size of adjustments to ex ante determined governmental objectives and means were minimal - the small modifications that were accepted (one amendment and one motion), were (strongly) supported by the coalition parties and the minister - the minister explicitly advocated against the remaining amendments and none of them was supported by a coalition party. None of them came close to being accepted - except for GreenLeft, the parties that supported the rejected amendments eventually agreed with the act Seriousness and duration of challenges to the Resilient success
50 legitimacy in the formation of choices - legal procedures (advice of the Council of State and discussion in the First and Second Chamber) and consultative procedures (five out of seven actors that were requested to provide for an advise did so) were followed - several appreciations were expressed regarding the legislative process in the First and Second Chamber by both coalition and opposition parties - only small shortcomings regarding the consultative process, but there were no lasting challenges to the legitimacy of the policy
Program success Indicators Valuation Degree to which the ex ante determined policy Precarious success output target level is achieved in time - most assumptions regarding limitations of existing legislation are incorrect - the ex ante policy output target levels of the act in general and of most separate measures are not achieved - most measures are hardly used (the security risk areas, exploratory investigation and remand in custody based on a suspicion) and one measure is not used at all (the possibility to delay a full inspection of procedural documents) - there are only minor achievements (one prosecution and the exclusion of risks with short-term investigations) Degree to which the implementation is in line Precarious success with objectives - most measures are difficult to implement due to unclear definitions (the differences between the indication criterium, reasonable suspicion criterium and grave presumption criterium for applying special investigative powers and for the remand in custody and the difficulty in assessing whether deviant behaviour can be classified as having a potential terrorist nature for the security risk areas) and coordination problems (the security risk areas). As a consequence, most measures are hardly used or not used at all - some measures are superfluous due to sufficient existing possibilities (the exploratory investigation and delay of a full inspection of procedural documents) - there exists only minor progress regarding the implementation objectives (marginal improvement in investigative possibilities and some improvement in excluding risks) Degree to which the efficiency criteria of actors Precaurious success
51 involved are met - the general efficiency criteria are not met due to the high costs of the measures (financially, time span and number of involved officials) and the bleak perspectives for finding sufficient information in order to prosecute suspective individuals (indications remain indications) - some small successes regarding the efficient exclusion of risks with short-term investigations and one case in which the remand in custody proved more efficient than permanently observing a ‘threatening’ individual
Political success Indicator Valuation Degree to which the positive consequences of Conflicted success the policy for the electoral prospects and - opinion polls (precarious success): reputation of government and leaders outweigh there are only marginal beneficial consequences the negative consequences for the electoral prospects while the consequences are largely detrimental. Except for the acceptance in the Second Chamber in which the coalition parties won three seats, the coalition parties generally lost seats.The aggregative loss amounts to seven seats regarding the announcement of the act and nine seats regarding the acceptance in the First Chamber. The results for the strongest opposition party (GreenLeft) were better: GreenLeft won one seat after the acceptance of the act in the First Chamber - national newspapers (resilient success): attention to security issues would improve electoral prospects, because of a broad societal call for more stringent counterterrorism measures, especially preventive counterterrorism measures. There is a repressive development. The newspapers deduced this from several surveys and comments of professors and practitioners in the field. Only a minority thought that the existing legislation already provided sufficient possibilities to tackle terrorism and there were no noteworthy protests Chapter 6 Conclusion
Four central points will be discussed here. First, a conclusion regarding the degree of policy success of the act wil be given below per indicator of the different realms. Second, the best fitting key pattern of realm success, as described by McConnell (2010: p. 357), will be identified. Third, the similarities and differences in results between the governmental WODC evaluation and the policy realms framework evaluation will be described in order to answer the main question. Finally, some
52 concluding remarks will be made about what perspectives should be used in the evaluation of preventively orientated policies.
The process category was generally assessed as successful. Although the attitude of most consultative organisations and the initial attitude of many political parties can be perceived as ‘sceptical’, the eventual voting patterns in the First and Second Chamber suggested otherwise. This can be attributed to the extensive and thorough parliamentary debates in both chambers and to the answering of the minister. Most opposition and all coalition parties turned out to be (very) satisfied about these debates. The fact that the act is still applicable in 2018 combined with the initiation of a more extensive legislative proposal led to the categorization of ‘the strength and duration of the coalition of proponents’ in the resilient success category. Regarding the second process indicator, the ex ante determined governmental objectives and means were largely retained. The small modifications that were initiated, were (strongly) supported by both the coalition parties and the minister. As a consequence, this indicator was assessed as a process success. The final process indicator was also assessed as a resilient success. Despite some small shortcomings regarding the consultative process, there were no lasting challenges to the legitimacy of the policy and most parties were (very) satisfied with the legislative process. Hard and controversial issues regarding the legitimacy could not be deduced from the parliamentary papers, advices and press reports. The appreciation of the program indicators was generally negative. The ‘degree to which the ex ante determined policy output target level is achieved in time’ falls short in practice. This applies to both the act in general and to the separate measures. The biggest encouraging signs were the prosecution of one suspect and the possibility of excluding risks with short-term investigations. Most measures are, however, applied only limitedly, some measures are not used at all and there were manifest examples of failures. As a consequence, the first program indicator was assessed as a precarious success. Regarding the implementation indicator, the different criteriums (indication, reasonable suspicion and grave presumption) were predicted to be hard to distinguish in practice by both scholars (for example Mevis, 2013) and politicians. Indeed, this turned out to be the case. Furthermore, the implementation of most measures was prone to coordination problems. Only minor progress regarding the implementation objectives (marginal improvement in investigative possibilities and some improvement in excluding risks) was visible. The implementation indicator was categorized as a precarious success as a consequence. Regarding efficiency, the costs of most additional measures are high and finding sufficient information for the prosecution of suspective individuals turned out to be hard in practice. During investigations based on indications, the indications are often confirmed and remain, but the earlier start does not lead to a more prosperous investigation resulting in the gathering of sufficient criminal evidence. There were some small successes such as efficiently excluding risks with short-term investigations, but the act does not seem to accomplish its general targets in an efficient way. Considering these points, the efficiency criteria indicator was assessed as a precarious success. The political indicator was assessed as less successful than the process indicator and as more successful than the program indicator. In general, the public opinion polls showed a decrease in the electoral prospects of the coalition parties which led to the categorization in the precarious success category. The newspaper articles included survey results and interviews with several experts in the field like professors and counselors. According to these sources, the act should lead to a general increase in the electoral prospects or reputation of governments and leaders. After the murder on Theo van Gogh and the terrorist attack in Madrid, only a minority of the Dutch population thought that the existing legislation provided sufficient
53 possibilities to tackle terrorism. These observations led to the categorization of the political indicator in the resilient success category. As both data-gathering methods were given the same weight, the eventual assessment of the political indicator resulted in the conflicted success category.
Determining the degree of policy success for the act led to different results for the different realms. The best fitting key pattern of realm success, as described by McConnell (2010: p. 357), seems to be the first one: a policy that is successful on the process and unsuccessful on the program. The cabinet was able to take the intended decision and to let the legislation pass largely unchanged in a legitimate way with sufficient coalition support. Despite this, the act largely failed to achieve the ex ante determined objectives. The second key pattern of realm success, successful politics combined with an unsuccessful program, is also visible to a lesser extent. This is arguably the consequence of the complex and delicate nature of terrorism. After all, terrorism has no clear causes or solutions. Despite the generally negative advices of the consultative organisations regarding the act, tackling terrorism with the act is arguably a rational strategy from a political point of view as it meets popular desires. This may be especially tempting in the run-up to an election (being decisive). Although cabinet Balkenende II collapsed prematurely and the murder on Theo van Gogh and the terrorist attack in Madrid occured not long before the initiation of the act, the acceptance in the First Chamber coincidenced with the Second Chamber election in November 2006. The introduction of the act on February 1, 2007 was close to the elections that would have been held anyway in 2007.
The main question concerns: does the application of the policy realms framework of McConnell to the Dutch Criminal Investigation of Terrorist Crimes Act provide a different picture about the degree of policy success of the act than the purely instrumental governmental WODC ex post evaluation?
Regarding the similarities between the governmental WODC evaluation and the policy realms framework evaluation, both evaluations paid attention to substantive program aspects (implementation criteria, policy output criteria and efficiency criteria: does the policy achieve the ex ante determined objectives?). Furthermore, both evaluations were rather critical on the achieved results for these aspects. Regarding the differences, the program aspects turned out to be the sole focus of the WODC evaluation. In addition to this rather unilateral approach of the WODC evaluation, the policy realms framework also paid attention to procedural aspects (was it possible to take the intended decisions and to let legislation pass in a legitimate way with sufficient coalition support?) and political aspects (are the electoral prospects or reputations of governments and leaders maintained or increased?). This broader approach eventually resulted in a sort of compensation of the lack of program success by the degree of process and political success which shows the possible consequences of a broader evaluative focus for the eventual evaluation results of (preventively orientated) policies. Generally speaking, the policy realms framework thus resulted in a somewhat more positive picture regarding policy success than the WODC evaluation. Nevertheless, despite the fact that politicians may be more concerned with politics, they may also acknowledge, like the Council of State did, that the positive effects regarding the program realm were limited and that scepticism regarding the assumptions of limitations of the existing legislation can be justified. Despite this, the focus on the additional realms can reasonably be expected to provide a more comprehensive picture about the degree of policy success than an instrumental evaluation for (similar preventively orientated) cases. Substantive aspects certainly matter, but procedural and political aspects are also important when determining the degree of policy success. After all,
54 different parties with different interests and opinions are involved in decision-making processes and many citizens may be subjected to policy measures.
As McConnell (2010: p. 357) argued, the eventual categorization of a policy into the three realms depends more on systematic judgements than on scientific precision. After all, policy success is based on both facts and interpretation. It is, however, important to evaluate delicate policies that are prone to public and political debates by actors with different norms, values and beliefs. Unfortunately, we are still witnessing the phenomenon towards which the act is aimed. During the period of this study, there were numerous terrorist attacks in (among others) Barcelona, Istanbul, Manchester and Sint- Petersburg. The Council of State recently advised about a new legislative proposal that goes further than the evaluated act and possible tensions with human rights and the rule of law recurred. Once again, opinions will be different and a comprehensive evaluation may be announced and required. Despite the controversial nature of especially preventively orientated counterterrorism measures, we are united in one aspect of terrorism: prevention is better than cure.
Literature
Algemeen Dagblad. (June 23, 2013). Driekwart Nederlanders: afluisteren tegen terreur mag. (http://www.ad.nl/digitaal/driekwart-nederlanders-afluisteren-tegen-terreur-mag~acb96bf8/).
55
Algemene Inlichtingen- en Veiligheidsdienst. (2017). (https://www.aivd.nl/onderwerpen/terrorisme/inhoud/ct-infobox/nationale-samenwerking- contraterrorisme). Consulted on March 8, 2017.
Algemene Inlichtingen- en Veiligheidsdienst. (2017). (https://www.aivd.nl/over-aivd). Consulted on March 27, 2017.
Algemene Inlichtingen- en Veiligheidsdienst. (2017). (https://english.aivd.nl/about- aivd/contents/tasks-and-areas-of-interest). Consulted on March 27, 2017.
Algemene Inlichtingen- en Veiligheidsdienst. (2017). (https://english.aivd.nl/about- aivd/contents/the-aivd%E2%80%99s-role-in-national-security). Consulted on March 27, 2017.
Allepeilingen. (2017). Alle peilingen van politieke partijen. (https://www.allepeilingen.com/).
Bakker, E. and De Graaf, B. (2014). Towards a Theory of Fear Management in the Counterterrorism Domain: A Stocktaking Approach. The Hague, International Centre for Counter-Terrorism.
Belinfante, A.D. and De Reede, J.L. Beginselen van het Nederlandse Staatsrecht: 17e druk. Deventer, Kluwer.
Berg, B.L. and Lune, H. (2012). Qualitative Research Methods for the Social Sciences: Eighth Edition. Pearson, Long Beach.
Boon, J. (December 29, 2008). Privacy voor schijnveiligheid. Trouw. (https://www.trouw.nl/home/privacy-voor-schijnveiligheid~aade7047/).
Borgers, M. and Sliedregt, E. (2009). The Meaning of the Precautionary Principle for the Assessment of Criminal Measures in the Fight against Terrorism. Rotterdam, Erasmus Law Review.
Bovens, M.A.P., ’t Hart, P. en Van Twist, M.J.W. (2012). Openbaar bestuur: beleid, organisatie en politiek 8e druk. Deventer, Kluwer.
Clapham, A. (2015). Human rights: a very short introduction. New York, Oxford University Press.
Council for the Judiciary. Advies wetsvoorstel opsporing van terroristische misdrijven. (https://www.google.nl/#q=Advies+Raad+voor+de+Rechtspraak,+23+december+2004). Consulted on July 20, 2017.
Council for the Judiciary. (2017). The Council for the Judiciary. (https://www.rechtspraak.nl/English). Consulted on July 19, 2017.
Council of State. (2005). (https://www.google.nl/search?sclient=psy- ab&biw=1366&bih=662&noj=1&q=raad+van+state+wet+opsporing+en+vervolging+terrorisme&oq=r aad+van+state+wet+opsporing+en+vervolging+terrorisme&gs_l=serp.3..33i160k1.2224.3440.1.3538. 11.10.0.0.0.0.154.617.4j2.6.0....0...1.1.64.serp..5.2.257.05bjN1eNofM). Consulted on July 20, 2017.
Crenshaw, M. (Ed.) (2010). The consequences of counterterrorism. New York, Russell Sage Foundation.
56
Data Protection Agency. (2004). Advies conceptwetsvoorstel bijzondere bevoegdheden tot opsporing van terroristische misdrijven. (https://www.google.nl/#q=CBP+advies,+22+december+2004). Consulted on July 20, 2017.
De Goede, M. (2008). The politics of preemption and the war on terror in Europe. Amsterdam, University of Amsterdam.
De Graaf, B. (September 3, 2011). 9/11 en de doorgeschoten veiligheid. Trouw. (https://www.trouw.nl/home/9-11-en-de-doorgeschoten-veiligheid~a56c4951/).
Dutch Association for the Judiciary. (2017). The Dutch Association of the Judiciary. (https://nvvr.org/english). Consulted on July 19, 2017.
Dutch Bar Association. (2017). The Netherlands Bar. (https://www.advocatenorde.nl/over-de-nova). Consulted on July 19, 2016.
Dutch Data Protection Authority. (2017). Mission, vision and core values. (https://autoriteitpersoonsgegevens.nl/en/about-cbp/mission-vission-and-core-values). Consulted on July 19, 2017.
El Ayadi, M. (2004, 1 September). Verborgen crisis in de rechtsstaat. Trouw. (https://www.trouw.nl/home/verborgen-crisis-in-de-rechtsstaat~a68b5cc7/).
Groen, J. and Kranenberg, A. (January 18, 2007). Terreurprof gaat politici de megafoon afraden. De Volkskrant. (https://www.volkskrant.nl/binnenland/terreurprof-gaat-politici-de-megafoon- afraden~a833189/).
Handelingen I 2006/07, 30164, item 5, p. 168-181.
Handelingen I 2006/07, 30164, item 5, p. 216-229.
Handelingen I 2006/07, 30164, item 7, p. 274-275.
Handelingen II 2005/06, 30164, item 56, p. 3663-3688.
Handelingen II 2005/06, 30164, item 73, p. 4612-4622.
Handelingen II 2005/06, 30164, item 79, p. 4936-4948.
Handelingen II 2005/06, 30164, item 81, p. 5007-5008.
Hood, C., Rothstein, H. and Baldwin, R. (2003). The government of risk: Understanding risk regulation regimes. Oxford, Oxford University Press.
Institute for Economics and Peace. (2016). Global Terrorism Index 2016. (http://economicsandpeace.org/reports/). Consulted on May 10, 2017.
Kamerstuk 2004/05, 30164, item 3. (Memorie van Toelichting).
Kamerstuk I 2006/07, 30164, C (Verslag).
Kamerstuk I 2006/07, 30164, D (Memorie van antwoord).
57
Kamerstuk II 2005/06, 30164, item 6 (Verslag).
Kamerstuk II 2005/06, 30164, item 7 (Verslag).
Kamerstuk II 2005/06, 30164, item 10 (Amendement van het lid De Wit).
Kamerstuk II 2005/06, 30164, item 11 (Amendement van het lid De Wit).
Kamerstuk II 2005/06, 30164, item 12 (Brief van de Minister van Justitie).
Kamerstuk II 2005/06, 30164, item 14 (Amendement van het lid De Wit).
Kamerstuk II 2005/06, 30164, item 15 (Amendement van het lid Eerdmans).
Kamerstuk II 2005/06, 30164, item 18 (Amendement van het lid Wolfsen).
Kamerstuk II 2005/06, 30164, item 19 (Motie van de leden Weekers, Dittrich en Wolfsen)
Kloosterman, N. and Moonen, L. (2017). Ervaren terroristische dreiging in Nederland. CBS. (https://www.cbs.nl/nl-nl/achtergrond/2017/25/ervaren-terroristische-dreiging-in-nederland).
Koopmans, T. (2005). Courts and political Institutions: a comparative view. New York, Cambridge University Press.
Marsh, D., & McConnell, A. (2010). Towards a framework for establishing policy success. Public administration, 88(2), 564-583.
McConnell, A. (2010). Policy success, policy failure and grey areas in-between. Journal of Public Policy, 30(03), 345-362.
Melenhorst, L. (March 14, 2017). Invloed media op wetgeving is beperkt. Universiteit Leiden. (https://www.universiteitleiden.nl/nieuws/2017/03/%E2%80%98invloed-media-op-wetgeving-is- beperkt%E2%80%99).
Mevis, P.A.M. (2013). Capita Strafrecht: Een thematische inleiding 7e druk. Nijmegen, Ars Aequi Libri.
Nationaal Coördinator Terrorismebestrijding en Veiligheid. (2016). National Counterterrorism Strategy for 2016-2020. (https://english.nctv.nl/binaries/LR_100495_rapportage_EN_V3_tcm32- 251878.pdf).
Nationaal Coördinator Terrorismebestrijding en Veiligheid. (2017). (https://english.nctv.nl/organisation/WhatdoestheNCTVdo/WhatdoestheNCTVdo.aspx). Consulted on March 27, 2017.
Nauta, B., Moolenaar, D.E.G. and van Tulder, F.P. (2011). Kosten van criminaliteit, In: Criminaliteit en rechtshandhaving 2010 ontwikkelingen en samenhangen. Den Haag, Boom Juridische Uitgevers: p. 241-270.
Nordhaus, W. D. (2012). Economic policy in the face of severe tail events. Journal of Public Economic Theory, 14(2), p. 197-219.
58
NOvA. (2004). Wetgevingsadvies: Bijzondere bevoegdheden tot opsporing van terroristische misdrijven. (https://www.advocatenorde.nl/juridische- databank/details/wetgevingsadviezen/124232). Consulted on July 19, 2017.
Parlement en Politiek. Kabinet-Balkenende II (2003-2006). ( https://www.parlement.com/id/vhnnmt7jpazy/kabinet_balkenende_ii_2003_2006). Consulted on July 18, 2017.
Parlement en Politiek. Kabinet-Balkenende III (2006-2007). (https://www.parlement.com/id/vhnnmt7m2000/kabinet_balkenende_iii_2006_2007). Consulted on August 1, 2017.
Peel, J. (2004). Precaution-A Matter of Principle, Approach or Process. Melb. J. Int'l L., 5, 483.
Plasterk, R.H.A. (December 21, 2016). Hoofdlijnen Jaarplan AIVD 2017 [Letter of government]. (https://www.aivd.nl/publicaties/kamerstukken/2016/12/22/kamerbrief-over-jaarplan-over-2017).
Public Prosecution Service. (2017). College van procureurs-generaal. (https://www.om.nl/organisatie/procureurs-generaal/). Consulted on July 19, 2017.
Rosendorff, B. P., & Sandler, T. (2005). The political economy of transnational terrorism. Journal of Conflict Resolution, 49(2), p. 171-182.
Sandin, P. (1999). Dimensions of the precautionary principle. Human and Ecological Risk Assessment: An International Journal, 5(5), 889-907.
Sandler, T. (2005). Collective versus unilateral responses to terrorism, In: Policy Challenges and Political Responses: Public Choice Perspectives on the Post 9/11 World. Mississippi, Springer: p. 75-93.
Staatscourant 39962. (2017). Advies van de Raad van State. (https://zoek.officielebekendmakingen.nl/dossier/30164/stcrt-2017- 39962?resultIndex=0&sorttype=1&sortorder=4). Consulted on August 7, 2017.
Stern, J. and Wiener, J.B. (2011). Terrorism and Weapons of Mass Destruction, in: The Reality of Precaution: Comparing Risk Regulation in the United States and Europe. Cambridge, p. 285-320.
Stewart, M. G., & Mueller, J. (2013). Terrorism risks and cost‐benefit analysis of aviation security. Risk Analysis, 33(5), 893-908.
Sociaal en Cultureel Planbureau. (2004). Moslim in Nederland Religie en migratie: sociaal- wetenschappelijke databronnen en literatuur. (https://www.scp.nl/Publicaties/Alle_publicaties/Publicaties_2004/Moslim_in_Nederland). Consulted on August 11, 2017.
Sociaal en Cultureel Planbureau and Centraal Planbureau (2007). Vijftig jaar publieke opinie en marktintegratie in de Europese Unie: Europese Verkenning. (https://www.cpb.nl/persbericht/328956/europese-verkenning-5-welvaart-europeanen-hoger-door- interne-markt). Consulted on August 11, 2017.
Strafblad. (2016). De AIVD ontrafelt, In: Strafblad. Den Haag, Sdu Uitgevers: p. 277-282.
59
Swanborn, P.G. (2008). Case-study’s: Wat, wanneer en hoe? 4e druk. Boom onderwijs, Den Haag.
Swinkels, W. and De Graaf, B. (December 31, 2010). Het recht op veiligheid schept een permanente noodtoestand. NRC. (https://www.nrc.nl/nieuws/2010/12/31/het-recht-op-veiligheid-schept-een- permanente-noodtoestand-11984190-a501618).
Taekema, H.S., Gaakeer, A.M.P. en Loth, M.A. (2013). Recht in context: Een inleiding tot de rechtswetenschap 3e druk. Den Haag, Boom Juridische uitgevers.
Trouw. (April 23, 2005). Nederlander vindt terrorisme belangrijkste wereldprobleem. (https://www.trouw.nl/home/nederlander-vindt-terrorisme-belangrijkste- wereldprobleem~a51e2836/).
Trouw. (August 17, 2005). ‘Overheid doet onvoldoende tegen terrorisme’. (https://www.trouw.nl/home/-overheid-doet-onvoldoende-tegen-terrorisme-~afc914f7/).
Trouw. (23 June 23, 2013). Driekwart Nederlanders: afluisteren tegen terreur mag. (https://www.trouw.nl/home/driekwart-nederlanders-afluisteren-tegen-terreur-mag~acb96bf8/).
USBO Advies (2016). Gericht, gedragen en geborgd interventievermogen? (https://www.rijksoverheid.nl/documenten/rapporten/2016/05/26/ek-bijlage-gericht-gedragen-en- geborgd-interventievermogen-evaluatie-van-de-nationale-contraterrorrisme-strategie-2011-20115).
Van der Heide, L. (March 24, 2016). Morele veerkracht bepaalt impact. Het Parool. (https://www.parool.nl/opinie/-morele-veerkracht-bepaalt-impact~a4269471/).
Van Gunsteren, H. (November 13, 2004). De gevaren van de veiligheidsstaat. De Volkskrant. (https://www.volkskrant.nl/archief/de-gevaren-van-de-veiligheidsstaat~a680988/).
Van Westerloo, G. (April 26, 2006). Het hoogste woord. NRC. (https://www.nrc.nl/nieuws/2006/04/29/het-hoogste-woord-11128317-a103315).
Verschuren, P. en Doorewaard, H. (2010). Het ontwerpen van een onderzoek 4e druk. Den Haag, Boom Lemma.
Volkskrant. (October 30, 2005). Nederlander tevreden over aanpak terrorisme. (https://www.volkskrant.nl/binnenland/nederlander-tevreden-over-aanpak-terroristen~a675176/).
Wikipedia. (2017). Kabinet Balkenende II. (https://nl.wikipedia.org/wiki/Kabinet-Balkenende_II). Consulted on July 19, 2017.
Wikipedia. (2015). Samenstelling Eerste Kamer 2003-2007. (https://nl.wikipedia.org/wiki/Samenstelling_Eerste_Kamer_2003-2007). Consulted on July 19, 2017.
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Appendix I
Main actors involved in the legislative process of the act The Dutch National Counterterrorism Strategy comprises the coming five years (2016-2020) and the general objective is ‘to reduce the risk of terrorist attacks, to decrease fear and to limit the damage resulting of a possible attack’ (NCTV, 2017 and USBO, 2017: p. 54, 72, 110 and 170). The Council of State, political parties and several consultative organisations were involved in the legislative process of the act. As a consequence, they frequently passed in review during the discussion of the process indicators. The Council of State, the parties (full names, role: coalition or opposition and main ideological views) and the consultative organisations will be briefly described below.
- Council of State: the Council of State is the principal advisory board of the cabinet regarding legislative proposals and is also involved in administrative procedures. The Council has to be
61 consulted about proposed national laws (like the act) and about proposed orders in council (Belinfante and De Reede, 2012: p. 86). The minister is not committed to follow the advices, but the advices are seriously taken into account in practice (Belinfante and De Reede, 2012: p. 136).
Coalition parties (Andeweg and Irwin, 2009: p. 23-24 and 65) - CDA (Christian Democratic Appeal): a major Christian-Democratic party; - VVD (Liberal Party or People’s Party for Freedom and Democracy): a major conservative-liberal party; - D66 (Democrats ’66): a progressive-liberal reform party.
Opposition parties (idem.) - PvdA (Labour Party or Party of Work): a major social-democratic party; - ‘Groep Wilders’ (currently PVV or Freedom party): a populist and conservative anti-Islam party; - GreenLeft: environmentalist and leftist party; - SP (Socialist Party): former Maoist, now leftist populist party; - Christian Union; an orthodox Calvinist party; - SGP (Political Reformed Party): a right-wing orthodox Calvinist party; - LPF (List Pim Fortuyn): a former right-wing populist party; - ‘Groep Nawijn’: a right-wing party resulting from a split of the LPF; - ‘Groep Lazrak’: a left-wing party resulting from a split of the SP.
Allocation of the 150 seats for the second Chamber at the beginning of the cabinet’s period on May 27, 2003 (Wikipedia, 2017)
The VVD had 27 seats when the Act passed on May 23, 2006 (Parlement en Politiek)
Allocation of the 75 seats of the First Chamber at the beginning of the session on June 10, 2003 (Wikipedia, 2015):
CDA: 23 D66: 3 PvdA: 19 CU: 2 VVD: 15 SGP: 2 GL: 5 LPF: 1 SP: 4 OSF: 1
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Consultative organisations involved in the legislative process of the act
- NOvA (Dutch Bar Association): the organisation of the legal profession which is formed by all lawyers in the Netherlands. The association is established by law (Act of Advocates), but is not funded by any government (NOvA, 2017).
- NVvR (Dutch Association for the Judiciary): the organisation that represents the whole of the Dutch Judiciary. This role is formally recognized by the government. About 70 procent of the Dutch judiciary (for example public prosecutors and judges) is a member of the NVvR (NVvR, 2017).
- CBP (Dutch Data Protection Authority): the organisation that supervises processing of personal data to guarantee compliance with legal provisions on personal data protection. It also consults on new legislation (CBP, 2017).
- RvdR (Council for the Judiciary): the Council belongs to the judiciary system and is responsible for several operational tasks like the allocation of budgets, personnel policy, the supervision of financial management and the promotion of the quality of the judiciary system. It also consults on new legislation that is relevant for the administration of justice (RvdR, 2017).
- Council of Attorneys-General: the Council that is in charge of the Dutch Public Prosecution Service. It decides about the national policies of the Public Prosecution Service regarding investigations and prosecution. Furthermore, it supervises the criminal enforcement of the legal order with particular attention to consistency, coherence and quality (Public Prosecution Service, 2017).
Main actors involved in the execution of the act The central government determines policies and acts to contribute to the objective while taking into account advices of consultative organisations (or not). Nevertheless, its influence on the processes to achieve the objectives of different policies and acts is limited (USBO, 2016: p. 34 and 46). Several other actors are involved in the execution of counterterrorism policies and they occasionally passed in review during the discussion of the program indicators. The main executing actors involved in the counterterrorism domain are the National Police, Public Prosecution Service and General Intelligence and Security Service (AIVD). An important actor in the Dutch counterterrorism domain (also mentioned in this study) is the National Coordinator for Security and Counterterrorism (NCTV). These actors will be briefly described below
- National police: the tasks of the police are described in the law on police (Politiewet). The two main tasks are the offering of assistance and the effective enforcement of the legal order. The second task consists of the enforcement of the public order, the criminal enforcement of the legal order and the performing of tasks in support of the judiciary. Regarding the execution of the act, the second task is the most important one. Regarding the criminal enforcement of the legal order and the performing of tasks in support of the judiciary, the competent authority is the public prosecutor (Mevis, 2013: p. 102-103).
- Public Prosecution Service: in general and in the execution of the act, the Public Prosecution Service is in charge of the detection of criminal offences, the prosecution of offenders and the enforcement of criminal sentences. It has special investigatory powers to accomplish these targets. This is described in the Judiciary Organisation Act. The public prosecutor is in charge of the investigation of
63 criminal offences on behalf of the Public Prosecution Service in which the end product of the police is the starting point of the Public Prosecution Service (Taekema, Gaakeer en Loth, 2013: p. 283).
- AIVD (General Intelligence and Security Service): the AIVD is a Dutch domestic intelligence agency and a Directorate-General of the Dutch Ministry of the Interior and Kingdom Relations. The AIVD falls under the latters responsibility. Its official main tasks are (AIVD, 2017):
investigating individuals and organisations conducting security screenings promoting the security of vital sectors gathering international intelligence compiling risk and threat analyses
Because of the possible severe consequences of terrorism, the legislator provides for this intelligence service to prevent terrorism and to increase knowledge about terrorism (Strafblad, 2016: p. 277). The AIVD conducts in-depth investigations to (groups of) individuals that may form a threat in order to predict their behaviour (Ministry of Defense, 2016: p. 37-38). The organisation shares the information with multiple other organisations. The AIVD cooperates with fellow services abroad and conducts investigations in other countries, because foreign developments can affect the Dutch national Security (AIVD, 2017, Ministry of Defense, 2014: p. 16-18 and Strafblad, 2016: p. 279). The AIVD does not, however, investigate criminal acts (often based on committed crimes ex post factum). Its task is to identify threats (based on potential threats to the national security ex ante factum) and to advise other organisations regarding the best way to respond to a specific threat. The AIVD itself does not have executive powers (AIVD, 2017 and Strafblad, 2016: p. 277-278). The information provided by the AIVD, can relate to different subjects (persons, organisations and countries) and is state secret. In order to start an investigation, the subject of investigation must form a threat to the continuation of the legal order, the national security or other relevant interests of the state (Strafblad, 2016: p. 278). The AIVD has special powers to reach its targets. If the AIVD wants to deploy a special power, it has to be necessary within the investigation and it has to be the least intrusive special power that is possible to reach the investigatory target. The Minister of the Interior and Kingdom Relations Ronald Plasterk asserts in his letter to parliament (2016) that counterterrorism, especially ISIS, will be the main focus of the AIVD in 2017, because it forms the biggest threat to Europe at the moment.
NCTV (National Coordinator for Security and Counterterrorism): within the Dutch central government, the NCTV falls under the responsibility of the Ministry of Security and Justice. It is responsible for counterterrorism, cyber security, national security and crisis management (NCTV, 2017). Its official main tasks are (NCTV, 2017):
the analysing and reducing of identified threats providing surveillance and protection for persons, property, services, events and vital sectors ensuring cyber security making property, individuals, sectors and networks more resistant to threats ensuring effective crisis management and crisis communication.
The NCTV has a coordinating role in the efforts of all parties involved in the Dutch counterterrorism domain. The NCTV connects knowledge and analyses with policy and execution and influences
64 frameworks and norms by facilitating, stimulating and steering policies (USBO, 2016: p. 64 and 173). It is an independent intermediary actor between policy makers and executing actors (USBO, 2016: p. 127 and 179). The NCTV also develops products that are strategically important in the fight against terrorism like the Terrorist Threat Assessment Netherlands (DTN). The DTN gives an indication of the likelihood of a terrorist attack in the Netherlands. Furthermore, the existence of the Counterterrorism Alert System (ATb) is relevant. It warns government institutions, police, emergency services and business sectors against possible terrorist attacks (NCTV, 2017).
Appendix II
The time plan of the research project is represented in the table below. Time plan of the research project Week in 2017 Task(s) 13 - Integration of suggestions for improvement to the research proposal 14 - Exploring the Dutch ‘National Counterterrorism Strategy 2016-2020’ 15 - Exploring the document that describes the evaluation of the Dutch ‘National Counterterrorism Strategy 2011-2015’ 16 - Selecting and summarizing literature that is relevant for explaining the Dutch legal trends regarding terrorism and the act - Ordening and writing down the information 17-25 - Idem as 16 26 - Selecting other documents on the basis of the three data-gathering strategies in order to apply the methods - Applying the methods to the Dutch act (evaluation) 27-28 - Holiday 29-32 - idem as 26 33-34 - Analysis: determining the degree of process,
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program and political success 35 - Writing down the conclusion - Check on grammar, formulations and lay-out
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