Select Committee on European Scrutiny Ninth Report


COM(01) 521




Draft Council Framework Decision on combating terrorism.

Draft Council Framework Decision on combating terrorism.

Draft Council Framework Decision on combating terrorism.

Draft Council Framework Decision on combating terrorism.

Legal base: Articles 24(2)(b), 29 and 31(e) EU; consultation; unanimity
Document originated: (b) 10 October 2001

(c) 14 November 2001

(d) 19 November 2001

Forwarded to the Council: (b) 10 October 2001

(c) 14 November 2001

(d) 19 November 2001

Deposited in Parliament: (b) 25 October 2001

(c) 19 November 2001

(d) 27 November 2001

Department: Home Office
Basis of consideration: (b) EM of 31 October 2001

(c) and (d) EM of 29 November 2001

Previous Committee Report: (a) HC 152-ii (2001-02), paragraph 8 (17 October 2001)

(b) HC 152- iv (2001-02), paragraph 4 (7 November 2001)

To be discussed in Council: 6-7 December 2001
Committee's assessment: Legally and politically important
Committee's decision: Cleared


  11.1  We considered a first draft of this proposed Framework Decision (document (a)) on 17 October. We held the document under scrutiny pending the Minister's reply to a number of questions, notably as to the operation of the Decision in relation to legal persons, and as to the very limited nature of the provisions on jurisdiction, which seemed to fall short of those under UN conventions on this subject.[33]

  11.2  The revised draft of the Framework Decision (document(b)) records the state of negotiations on the matter by 10 October. We considered this revised version on 7 November and noted that our concerns, especially in relation to rules of jurisdiction, appeared to have been addressed. A further revised draft (document (c)) set out the results of discussions in Coreper on 12 and 14 November, and is replaced by document (d) which sets out the version as it has emerged from the Justice and Home Affairs Council on 16 November, when the question of defining a terrorist aim, the question of penalties and rules of jurisdiction were the subject of particular attention.

The latest draft Framework Decision (document (d))

  11.3  The revised draft following the JHA Council makes a number of further small changes to the text we considered on 7 November relating to the definition of a terrorist offence, penalties and rules of jurisdiction.

  11.4  A provision in the recitals (recital 10) makes it clear that nothing in the Framework Decision may be interpreted as being intended to reduce or restrict fundamental rights or freedoms such as the freedom of assembly, of association or of expression, including the right of everyone to form and to join trade unions with others for the protection of his or her interests and the related right to demonstrate.

  11.5  As before, Article 1 contains a list of substantive offences which become terrorist offences if committed with a specific intent. They become terrorist offences if they are committed with the aim of :

"(i)  seriously intimidating a population, or

(ii)  unduly compelling a Government or international organisation to perform or abstain from performing any act, or

      (iii)  seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation."

  11.6  The provisions of Article 2 (offences relating to terrorist groups) and Article 3 (inciting, aiding or abetting, and attempting) are unchanged. Article 4 (penalties) retains the general provision in Article 4(2) the effect of which is to require Member States to provide for sentences of imprisonment which are heavier than those which would have been imposed if the specific terrorism intent had not been shown. The effect of Article 4(3) is that, in relation to the offence of directing a terrorist group, Member States are to provide for a sentence of at least twenty years' imprisonment. A sentence of at least eight years' imprisonment is to be provided for in the case of the other offences related to a terrorist group (i.e. participating, supporting with information or material resources and laundering the proceeds of offences). At the Justice and Home Affairs Council, Germany proposed a revision of Article 4(3) so as to provide for a maximum sentence of not less than 15 years for directing a terrorist group, and not less than 5 years for the other offences relating to a terrorist group.

  11.7  The provisions on aggravating circumstances (Article 5) and reduction of penalties (Article 6) are substantially unchanged. Where these aggravating circumstances are present, Article 5 requires Member States to increase the sentences, except where the sentences imposable are already the maximum sentences possible under national law. The effect of this provision appears to be that where there is a fixed term provided for in the national law, this is to be extended to provide for aggravating circumstances, but this is not required in such cases where the maximum sentence is already one of life imprisonment (and which cannot, therefore, be increased).

  11.8  Article 6 deals with the reduction of penalties and has remained substantially unchanged, as have Articles 7 and 8 containing provisions on the liability of and penalties for legal persons.

  11.9  Article 9 contains expanded rules on jurisdiction to replace the limited rules in the previous version. As far as territorial rules are concerned, Member States are required to make rules to establish jurisdiction over offences committed in whole or in part within the territory of a Member State of the EU.[34] In addition, they are to establish jurisdiction where the offence is committed on board a ship or aircraft registered in or flying the flag of a Member State.

  11.10  Member States are also required to establish jurisdiction where the offence is committed by a national or resident of a Member State of the European Union. As we noted on 7 November, this marks a considerable extension of the previous version which only permitted (and did not require) that each Member State establish jurisdiction over its own nationals, with the additional proviso that the Member State could also require that the conduct be punishable in the country where it occurred. The rules of jurisdiction over legal persons have been expanded so that each Member State is now required (and not simply permitted) to establish jurisdiction, not merely over a legal person having its head office in that State, but also over a legal person established in the territory of any Member State. Finally, Member States are required to establish jurisdiction over an offence committed against the institutions or people of that Member State or against an EU or EC institution based in that Member State.

  11.11  To deal with cases where the courts of a number of Member States would be competent to try offences arising out of the same set of facts. Article 9(2) provides for the Member States to 'cooperate in order to decide which of them will prosecute the offenders with the aim, if possible, of centralising proceedings in a single Member State'. Unlike the previous version, no express reference is made to Eurojust, but it is simply provided that Member States "may have recourse to any body or mechanism established within the European Union in order to facilitate cooperation between their judicial authorities and the coordination of their action'.

  11.12  In relation to victims, the revised draft requires Member States to ensure that investigations into or prosecutions of terrorist offences should not be dependent on a report or accusation of a victim. The operation of Article 4 of the Framework Decision on the standing of victims in criminal proceedings[35] is not excluded, but Member States are required to "take all measures possible to ensure appropriate assistance for victims' families and, in particular, to apply Article 4 of that Framework Decision 'where necessary and possible'".

The Government's view

  11.13  In his letter of 12 November 2001 the Parliamentary Under- Secretary of State at the Home Office (Mr Bob Ainsworth) describes how the provisions of the Framework Decision would affect the law of the United Kingdom as follows:

"The Government believes the provisions of the draft Framework Decision are consistent with those in the Terrorism Act 2000. Specifically, the offences and the draft Framework Decision are fully covered by the provisions of the 2000 Act and other UK criminal law."

  11.14  In his Explanatory Memorandum of 29 November 2001 covering the present version of the proposal (document (c)) the Minister comments on its policy implications as follows:

"Any extension of extraterritorial jurisdiction would be consistent with the approach already taken in relation to UN Conventions on terrorist bombing and finance. The Government welcomes the inclusion in the definition of terrorist offences, of offences of financing terrorism and money laundering. On penalties for terrorist offences [and offences concerned with association with a terrorist group], the [UK] is committed to a firm stance against all forms of terrorism and tough sanctions against all those convicted of terrorist offences. The Government's [strong] preference is therefore to retain Article 5 of the original Commission proposal and [will seek] to improve the current text accordingly."


  11.15  In our consideration of previous drafts of this proposal we raised a number of concerns which now appear to have been addressed. We welcome the broader rules of jurisdiction now provided for, which seem to us more appropriate to deal with the frequently international nature of terrorist crimes.

  11.16  We also note the Minister's view that the Framework Decision is consistent with the Terrorism Act 2000, and that the offences and penalties are already fully covered by that Act and by UK criminal law.

  11.17  We still note with concern the open texture of the drafting of some parts of the Framework Decision, particularly the use of such subjective concepts as an offence 'of a particularly cruel nature' in Article 5. Nevertheless, we acknowledge the improvements which have been made, notably in relation to the definition of a terrorist offence.

  11.18  We have no further points to raise on the documents and, given the minimal effect of the Framework Decision on the law of the United Kingdom, we do not think that much purpose would be served by holding them under scrutiny. We therefore clear the documents.

33  See, for example, the 1997 UN Convention for the Suppression of Terrorist Bombings and the 1999 UN Convention for the Suppression of Financing Terrorism. Back

34  The previous version referred only to the territory of the relevant Member State. Back

35  OJ No. L 82 22.3.01, p.1 Article 4 provides for the right of victims to receive information inter alia as to how and under what conditions they can receive protection, legal advice and compensation, as well as to information as to the outcome of the case. Back

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