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Wednesday 20 April 2016

The European Commission proposal for a Directive on combating terrorism - European Regional Forum newsletter article, April 2016

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The European Commission proposal for a Directive on combating terrorism

EUROPEAN UNION

Barbara Bandiera, Studio Legale RCC, Milan

barbara.bandiera@rcclex.com

 

Preliminary remarks

On 8 December 2015, Valdis Dombrovskis, European Commission Vice-President for the Euro & Social Dialogue, at the ECOFIN press conference in Brussels, highlighted that:

  • The horrific terrorist attacks in Paris on 13 November 2015 have again reminded us of the need to act on all fronts to prevent future atrocities.
  • Ministers agreed to work on fighting terrorism financing as an absolute priority. ‘Terrorist financing’ is the provision or collection of funds, by any means, directly or indirectly, with the intention or in the knowledge that they would be used in order to carry out terrorist offences.
  • The European Commission set out options. These include blocking hard-to-trace financing sources, such as:
    –             illicit movements of cash, increasingly through systems that allow virtual currencies to be exchanged for real money anonymously;
    –             extra checks on the purchase and distribution of prepaid cards;
    –             more vigilant registering of bank accounts and freezing assets;
    –             better information sharing on financial intelligence. This is part of a wider security package presented by the European Commission the first week of December 2015 to step up the fight against terrorism and organised crime.

On 2 December 2015, the European Commission adopted a package of measures to step up the fight against terrorism and the illegal trafficking of firearms and explosives. The package includes two main elements:

  • a proposal for a directive on combating terrorism (COM(2015) 625 final) (hereinafter, the ‘Directive’), which will strengthen the European Union’s arsenal in preventing terrorist attacks by criminalising preparatory acts such as training and travel abroad for terrorist purposes as well as aiding or abetting, inciting and attempting terrorist acts. With regard to the terrorist financing, the Directive introduces a comprehensive definition of the crime of terrorist financing, covering the provision of funds that are used to commit terrorist offences and offences related to terrorist groups or terrorist activities. The criminalisation of terrorist financing includes the provision of funds for the planning or execution of a terrorist attack, the provision of funds necessary to recruit, train or spread terrorist propaganda and of funds to maintain the activities of a terrorist group;
  • an Action Plan to step up the fight against criminals and terrorists accessing and using weapons and explosives through a reinforced control of illicit possession and import to the EU.

The aforesaid package is part of the European Security Agenda adopted by the European Commission in April 2015. In the light of the recent atrocious terrorist attacks in Paris, its implementation has been significantly accelerated.

Focus on the new measures to fight against terrorism

The Directive closes criminal enforcement gaps in the EU legal framework. The Directive also provides for common definitions of terrorist offences ensuring a common response to the phenomenon of foreign terrorist fighters, so enhancing the deterrent effect across the EU and ensuring that perpetrators are effectively sanctioned.

The Directive overhauls the EU’s existing legal framework on the criminalisation of offences linked to terrorist activities.

The Council framework decision of 13 June 2002 on combating terrorism (2002/475/JHA) and amending decision of 28 November 2008 (2008/919/JHA) require EU countries to align their legislation and introduce minimum penalties regarding terrorist offences. The decisions define terrorist offences, as well as offences related to terrorist groups or offences linked to terrorist activities, and set down the rules for transposition in EU countries.

This legislation needs to be strengthened in line with developments in the area of terrorism to tackle offences such as travelling abroad for terrorist purposes, the receiving of training and a comprehensive offence of terrorist financing, which are not yet included in EU law. More coherent, comprehensive and harmonised criminal law provisions are therefore necessary to effectively prevent and prosecute the current modus operandi of terrorists and to respond swiftly to the increased cross-border challenges.

The Directive implements into EU law international obligations, such as:

The provisions of the United Nations Security Council Resolution 2178(2014) (‘Threats to international peace and security caused by terrorist acts’) on foreign terrorist fighters

The Resolution requires that states establish serious criminal offences with regard to:

  • the travel or attempted travel to a third country with the purpose of contributing to the commission of terrorist acts or the providing or receiving of training;
  • the funding of such travel and
  • the organisation or facilitation of such travel.

The recently adopted Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism (Warsaw, 16 May 2005).

The Council of Europe adopted this Convention to increase the effectiveness of existing international texts on the fight against terrorism. It aims to strengthen Member States’ efforts to prevent terrorism in two different ways:

  • by establishing as criminal offences certain acts that may lead to the commission of terrorist offences, namely: public provocation, recruitment and training; and
  • by reinforcing cooperation on prevention both internally (national prevention policies), and internationally (modification of existing extradition and mutual assistance arrangements and additional means).

The Convention contains a provision on the protection and compensation of victims of terrorism. The purpose of the Additional Protocol, adopted on 19 May 2015 by the Council of Europe and opened for signature on 22 October 2015 in Riga (Latvia), is to supplement the Council of Europe Convention on the Prevention of Terrorism with provisions criminalising a series of conducts closely related to the phenomenon of foreign terrorist fighters. The Additional Protocol provides a pan-European legally binding framework for the implementation of UN Security Council Resolution 2178 (2014) which targets the activities of foreign terrorist fighters, including by setting up a mechanism for exchange of information on foreign terrorist fighters on a 24/7 basis. Furthermore, the Additional Protocol provides legal standards for the criminalisation at international level of ‘the participation in an association or group for the purpose of terrorism’ and ‘the receiving of training for terrorism’ – both of which crimes have not previously been defined in international law. This harmonisation process is essential to enhance cooperation between States to efficiently implement counter-terrorism policies. The EU signed the Additional Protocol as well as the Convention on 22 October 2015; and

The Financial Action Task Force Recommendations (FATF) on terrorist financing (adopted on 16 February 2012, and updated in 2013 and 2015)

This set out a comprehensive and consistent framework of measures which countries should implement in order to combat money laundering and terrorist financing, as well as the financing of proliferation of weapons of mass destruction. The FATF Recommendations state that countries should criminalise not only the financing of terrorist acts but also the financing of terrorist organisations and individual terrorists even in the absence of a link to a specific terrorist act or acts. Countries have diverse legal, administrative and operational frameworks and different financial systems, and so cannot all take identical measures to counter these threats. The FATF Recommendations, therefore, set an international standard, which countries should implement through measures adapted to their particular circumstances. The FATF Recommendations set out the essential measures that countries should have in place to:

  • identify the risks, and develop policies and domestic coordination;
  • pursue money laundering, terrorist financing and the financing of proliferation;
  • apply preventive measures for the financial sector and other designated sectors;
  • establish powers and responsibilities for the competent authorities (eg, investigative, law enforcement and supervisory authorities) and other institutional measures;
  • enhance the transparency and availability of beneficial ownership information of legal persons and arrangements; and
  • facilitate international cooperation.

The Directive criminalises:

  • travelling for terrorist purposes, both within and outside the EU, to counter the phenomenon of foreign terrorist fighters;
  • the funding, organisation and facilitation of such travels, including through logistical and material support, including the provision of firearms and explosives, shelter, means of transportation, services, assets and goods;
  • receiving training for terrorist purposes. Law enforcement will be provided with the possibility to investigate and prosecute training activities having the potential to lead to the committing of terrorist offences;
  • providing funds used to commit terrorist offences and offences related to terrorist groups or terrorist activities.

The Directive also strengthens provisions criminalising recruitment, training for terrorist purposes and the spread of terrorist propaganda, including on the internet. Terrorist groups have demonstrated advanced skills in the use of the internet and new communication technologies to disseminate propaganda, interact with potential recruits, share knowledge, plan and coordinate operations.1

The Directive also lays out new rules, complementing the Directive on rights for victims from 2012 (Directive 2012/29/EU), to ensure that victims of terrorism receive immediate access to professional support services providing for physical and psycho-social treatments as well as immediate information on their rights, independently of where they live in the European Union.

 

Note

1              On 16-17 December 2015, in New York, the United Nations Security Council Counter-Terrorism Committee held a special meeting on preventing terrorists from exploiting the internet and social media to recruit terrorists and incite terrorist acts, while respecting human rights and fundamental freedoms. This meeting was complemented by United Nations Counter-Terrorism Committee Executive Directorate-organised thematic sessions.

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