EU counter-terrorism offences What impact on national legislation and case-law? Edited by Francesca Galli, Anne Weyembergh ISBN 978-2-8004-1527-7 © 2012 by Editions de l’Université de Bruxelles Avenue Paul Héger 26- 1000 Bruxelles (Belgique) [email protected] http://www.editions-ulb.be Imprimé en Belgique Foreword This book is the result of the international conference “EU Counter-Terrorism Offences: What Impact on National Legislation and Case-law?” organised by ECLAN (European Criminal Law Academic Network) and the Institute for European Studies (Université Libre de Bruxelles) on 27-28 May 2011. This event took place in the framework of the project ECLAN II which has been carried out with the financial support of the European Commission (DG Justice), of the Ministry of Justice of the Grand Duchy of Luxembourg and of the Institute for European Studies (Université Libre de Bruxelles). The publication of this volume is funded by the Ministry of Justice of the Grand Duchy of Luxembourg. The editors would like to express their gratitude to all those who were involved in the preparation of the conference, particularly Emanuela Politi and Serge de Biolley. Special thanks are also due to Julian Hale for his help in the language proofreading of some chapters of the book. PART I Introduction and overview of EU legal instruments in the fight against terrorism Introduction Francesca GALLI and Anne WEYEMBERGH 1. The background to the publication In recent times, evaluations have become increasingly important when it comes to EU policy related to cooperation in penal matters. This has been recognised by the EU institutions, and especially by the European Commission 1 and by the Justice and Home Affairs Council 2. It can also be read in planning texts adopted by the European Council, such as the The Hague Programme of 5 November 2005 3 and the Stockholm Programme of December 2009 4 and political texts such as the Lisbon Treaty 5. There are a number of reasons for this trend. One is the increasing number and importance of EU instruments in the field. Faced with this development, one of the main current challenges is to ensure that existing EU penal law is fully and correctly implemented. In this regard, an evaluation of the implementation of existing criminal policy texts is essential. An evaluation of the existing EU texts and of their implementation is also required before further developing policies in the penal sector. Each new intervention by the EU legislator should be preceded by a demonstration of the added value of the draft instrument. Part of this should be about identifying and measuring the effects of the existing law. Finally, evaluation is also a key part of efforts to boost levels of mutual trust within the EU criminal justice area. Proper evaluation 1 See especially the Commission’s Communications “on evaluation of EU policies on freedom, security and justice”, COM (2006) 332 final, 28 June 2006 and “on the creation of a forum for discussing EU justice policies and practice”, COM (2008) 38 final, 4 February 2008. See also COM (2005) 195 final, 19 May 2005, p. 8 and f. 2 See JHA conclusions of 24 January 2005. 3 OJ, no. C 53, 3 March 2005, p. 1. 4 OJ, no. C 115, 4 May 2010, p. 1. 5 Article 70 TFEU. 12 INTRODUCTION AND OVERVIEW OF EU LEGAL INSTRUMENTS can help drive up the quality and efficiency of national systems and improves mutual knowledge and understanding of each others’ systems. This collective book presents and discusses the latest counter-terrorism policies at the EU level, and particularly the approximating instruments in the field, namely the Framework Decisions 2002/475/JHA on combating terrorism and 2008/919/JHA amending the previous one. The objective is, in particular, to evaluate the impact of introducing an EU definition of terrorism and the three new offences of provocation, training and recruiting for terrorism purposes on the development of selected EU Member States’ substantive criminal law and case law. It is a follow-up to the studies by ECLAN on the evaluation of EU policies in the field of judicial cooperation in criminal matters, which aims to develop a methodology to assess the implementation and impact of European criminal law 6. It applies the methodology developed by these ECLAN studies. The choice of which EU instruments to assess was determined by the ECLAN contact points on the basis of their importance, sensitivity and representativeness but also on the basis of the period of implementation. A sufficient period of time had to go by to allow for an assessment of their transposition and of the instruments’ practical implementation 7. The chosen topic is, moreover, in line with the research project entitled ‘The prevention of terrorism within the European Union: impact on criminal law and the redefinition of the relationship between European criminal law and national criminal justice systems’ conducted by the Institut d’Etudes Européennes of the ULB 8. 6 Particularly noteworthy are the two following publications: A. WEYEMBERGH and S. DE BIOLLEY (eds.), Comment évaluer le droit pénal européen?, Bruxelles, Editions de l’Université de Bruxelles, 2006, 242 p. and A. WEYEMBERGH and V. SANTAMARIA (eds.), The evaluation of European criminal law – The example of the Framework Decision on combating trafficking in human beings, Bruxelles, Editions de l’Université de Bruxelles, 2009. See also other projects and publications such as the project led by the University of Maastricht on “Evaluation and Monitoring European Cooperation in Criminal Matters” and N.M. DANE and A. KLIP (eds.), An additional evaluation mechanism in the field of EU judicial cooperation mechanisms in the field of EU judicial cooperation in criminal matters to strengthen mutual trust, Celsus Juridische Uitgeverij, 2009. 7 By virtue of Article 11 of the 2002 FD, Member States had to adopt the necessary measures to implement the instrument by 31 December 2002 and by virtue of Article 3 of the 2008 FD, Member States had to adopt the necessary measures to implement the instrument by 9 December 2010. 8 This is led with the financial support of the Belgian Fond National pour la Recherche Scientifique (FNRS). INTRODUCTION 13 2. The instruments under evaluation: Council Framework Decision of 13 June 2002 on combating terrorism as amended by Council Framework Decision of 28 November 2008 (see Annexes II and III). A. Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism 9 1. History and scope The need to put in place a common and robust EU policy against terrorism was discussed for years before any action was taken. Finally, a proposal for a Framework Decision on the fight against terrorism was presented by the Commission on 19 September 2001 10, a few days after the attacks of 11 September 2001. The proposal was negotiated during the Belgian Presidency of the EU Council. Thanks to the favorable timing for any negotiation in this field, it was formally adopted on 13 June 2002 11. 9 On the Framework Decision see A. WEYEMBERGH and V. SANTAMARIA, “Lutte contre le terrorisme et droits fondamentaux dans le cadre du troisième pilier. La Décision-cadre du 13 juin 2002 relative à la lutte contre le terrorisme et le principe de la légalité”, in J. RIDEAU (ed.), Les droits fondamentaux dans l’Union européenne. Dans le sillage de la Constitution européenne, Bruxelles, Bruylant, 2009, p. 197 and f.; M.A. BEERNAERT, “La décision-cadre du 13 juin 2002 relative à la lutte contre le terrorisme”, Revue internationale de droit pénal, 2006, p. 277 and f.; S. PEERS, “EU Responses to Terrorism”, ICLQ, no. 52, 2003, p. 227; B. SAUL, “International Terrorism as a European Crime: The Policy Rationale for Criminalization”, European Journal of Crime, Criminal Law and Criminal Justice, 11(4), 2003, p. 323-349; E. DIMITRIU, “The EU’s Definition of Terrorism: The Council Framework Decision on Combating Terrorism”, German Law Journal, 5(5), 2004, p. 585-602. On the EU counter-terrorism policy more broadly, see A. ADAM, La lutte contre le terrorisme: étude comparative Union européenne – Etats-Unis, Paris, L’Harmattan, 2005; J. ARGOMANIZ, The EU and counter-terrorism: politics, polity and policies after 9/11, New York, Routledge, 2011; J. AUVRET-FINCK (ed.), L’Union européenne et la lutte contre le terrorisme : état des lieux et perspectives, Bruxelles, Larcier, 2010; D. BROWN, The European Union, counter terrorism and police co-operation, 1992-2007: unsteady foundations?, Manchester, Manchester University Press, 2010; O. BURES, “EU Counterterrorism Policy: A Paper Tiger?”, Terrorism and Political Violence, 18(1), 2006, p. 57; F. EDER and M. SENN (eds.), Europe and transnational terrorism: assessing threats and countermeasures, Baden-Baden, Nomos, 2009; M. JIMENO-BULNES, “After September 11th: the fight against terrorism in national and European law. Substantive and procedural rules: some examples”, European law journal, 10, 2004, p. 235; D. KEOHANE, The EU and counter-terrorism, London, Centre For European Reform, 2005; D. MAHNCKE and J. MONAR (eds.), International Terrorism. A European Response to a Global Threat?, Brussels, Peter Lang, 2006; J. MONAR, “Common Threat and Common Response? The European Union’s Counter-Terrorism Strategy and its Problems”, Government and Opposition, 42(3), 2007, p. 292; J. MONAR, “The EU’s Approach post-September 11: Global Terrorism as a Multidimensional Law Enforcement Challenge”, Cambridge Review of International Affairs, 20(2), 2007, p. 267; A. WEYEMBERGH, “La coopération pénale européenne face au terrorisme: rupture ou continuité ?”, in K. BANNELIER et al. (eds.), Le Droit international face au terrorisme après le 11 septembre 2001, Paris, Pedone, 2002. 10 COM (2001) 521final, 19 September 2001. 11 Council Framework Decision of 13 June 2002 on combating terrorism, OJ, no.