Friday, 9 May 2008

European Commission’s thought police criminalise radical opinions under EU terror legislation

It was reported in the European Journal Nov/Dec 2007 issue that the Commission had presented a proposal amending the Council Framework Decision 2002/475 on combating terrorism. The aim is to bring the framework decision into line with the Council of Europe Convention on the prevention of terrorism. According to the European Scrutiny Committee the principle of subsidiarity permits the EU to take action “only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States.” The ESC believes that is not essential for the EU to adopt the Framework Decision, whereas the Council of Europe has already adopted a Convention which achieves the same result.

However, according to the Minister of State for Security, Counter-Terrorism, Crime and Policing at the Home Office, Tony McNulty, Member States are responsible for combating terrorism but the EU “has an essential supporting role especially in establishing minimum legal standards.” The Government therefore believes that by adopting the Framework Decision, the EU “achieves a better result” than would be achieved if Member States were simply to ratify and implement the Council of Europe Convention. Moreover, the Minister has stressed that five Member States have implemented the 2005 Council of Europe Convention while the 2002 Framework Decision “became EU law and was in the process of implementation in all Member States within seven months.”

The EU Member States have taken different views on the Commission proposal which requires them to criminalise the public provocation of terrorism, terrorist training and terrorist recruitment. Under the original Framework Decision, there is an obligation to criminalise attempts of terrorism. Under the Council of Europe Convention, attempts to commit recruitment and attempts to commit training are criminalised with a reference to national law. Whereas some Member States, such as Italy, Portugal and Spain were demanding that all attempts at terrorist training and recruitment be included in the scope of the legislation, whether they are successful or not, other Member States such as Sweden, Germany and the Czech Republic believe that unsuccessful attempts should not be criminalised as this would contravene their national law. According to the Slovenian presidency, as a compromise, there will be a reference to the two types of offences but it is optional to criminalise them.

Under Article 9 of the 2002 Framework Decision “Each Member State shall take the necessary measures to establish its jurisdiction over the offences referred to in Articles 1 to 4 where: the offence is committed in whole or in part in its territory, each Member State may extend its jurisdiction if the offence is committed in the territory of a Member State; the offence is committed on board a vessel flying its flag or an aircraft registered there; the offender is one of its nationals or residents; the offence is committed for the benefit of a legal person established in its territory; the offence is committed against the institutions or people of the Member State in question or against an institution of the European Union or a body set up in accordance with the Treaty establishing the European Community or the Treaty on European Union and based in that Member State.”

The European Scrutiny Committee has stressed that it is not required under the Commission’s proposal for a public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism, to take place within the territory of a Member State. Instead, it is required that it is directed towards or results in a terrorist offence over which another Member State may assert jurisdiction. Therefore, according to the ESC, “the provision would seem to require the laws of the UK to provide for jurisdiction on an extra-territorial basis.” Tony McNulty has explained to the ESC that some Member States have supported the inclusion of rules of jurisdiction over the new offences in all the situations covered by Article 9 which would give the Framework Decision a wider scope than the Council of Europe Convention.

Other Member States have argued that taking extra-territorial jurisdiction for these offences would go too far and would not be necessary. The Government wants to keep the scope of the Framework Decision close to the Convention and therefore believes it should be optional for Member States to prescribe rules of jurisdiction. Obviously, Member States should not be obliged to adopt provisions which might lead to conflicts of criminal jurisdiction.

On 18 April, the Council has already reached a general approach on the Commission proposal from last November to amend the Council Framework Decision on combating terrorism aimed at criminalising internet use for terrorism purposes. The Framework Decision provides for rules as regard the type and level of criminal penalties and compulsory rules on jurisdiction which will be applicable to the offences. The existing framework decision will be updated in order to include public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism. Moreover, inciting a terrorist act or providing instruction for making a bomb in the internet would be considered a terrorist offence. Incitement to commit terrorist acts, the training and recruitment of terrorists, will be considered among criminal acts in all EU Member States. Under the new legislation, it would be easier for law enforcement authorities to demand cooperation from internet service providers in order to identify criminals. However, as Syed Kamall MEP has said “how can we be certain it will not be misused to lock up people whose views we may disagree with but which they are entitled to air in a democratic society?”

The Member States have agreed that they are not obliged to start criminal proceedings for incitement and unsuccessful attempts to train and recruit terrorists. Some Member States have shown concerns over this proposal interference with some having national traditions of free speech. The Slovenian presidency has proposed to introduce a new provision with the aim of exempting Member States from requirements that might contradict “freedom of expression, in particularly freedom of the press”, as recognised by constitutional traditions. All Member States accepted the introduction of a new Article in the amending Framework Decision containing a paragraph on freedom of expression.

According to a compromised text of the Slovenian Presidency from 14 April, “mandatory grounds for jurisdiction will be maintained (including points (d) and (e) for the new offences, as they currently stand in the existing Framework Decision.” The ESC has held the document under scrutiny although they informed the Minister that this would not prevent him from participating in a general approach but only “on the basis that there is no requirement to criminalise attempts to commit the new offences and that the extended rules of jurisdiction in Article 9(1)(d) and (e) are made optional ….” Nevertheless, it seems that Member States would also be obliged to accept jurisdiction for offences committed for the benefit of a legal person established in their territory and offences committed against the institutions or people of the Member State in question or against an institution of the European Union located in their territory. The amending Framework Decision also provides for the terrorist-related offences to be punished by “effective, proportionate and dissuasive” sanctions. Member States are also required to ensure that criminalisation is “proportionate” to the criminal’s aims and to exclude “any form of arbitrariness and discrimination”.

The Council still has to formally adopt the agreement. The Justice and Home Affairs Council is expecting to vote on the proposal at its meeting in June. At present, unanimity is still required at the Council.

-- Sign up for FREE to both Margarida Vasconcelos’ regular ‘Through the EU Labyrinth’ and John Laughland's 'Intelligence Digest' to find out what’s really happening in Europe --

No comments: