Draft Council Framework Decision on combating terrorism.
||Articles 24(2)(b), 29 and 31(e) EU; consultation; unanimity
||19 September 2001
|Forwarded to the Council:
||19 September 2001
|Deposited in Parliament:
||27 September 2001
|Basis of consideration:
||EM of 11 October 2001
|Previous Committee Report:
|To be discussed in Council:
||6-7 December 2001
||Legally and politically important
||Not cleared; further information requested
8.1 The European Council met in extraordinary session
on 21 September 2001 to analyse the international situation following
the terrorist attacks in the United States on 11 September. The
European Council approved a plan of action in which it signified
its agreement to the adoption of a common definition of terrorism
as well as the introduction of a European arrest warrant.
8.2 At the meeting of the Justice and Home Affairs
Council on 20 September, the Council considered the draft Framework
Decision and emphasised 'the urgent need for a common understanding,
not only politically but also legally, of what terrorism means
in order to facilitate transborder cooperation' and also the need
'to overcome the requirement of double criminality
in terrorist cases'.
The Framework Decision
8.3 The proposal is based on Article 34(2)(b) EU,
which empowers the Council to adopt framework decisions 'for the
purpose of approximation of the laws and regulations of Member
States'. The Commission's explanatory memorandum points out that
only six Member States (France, Germany, Italy, Portugal, Spain
and the United Kingdom) have specific legislation defining terrorism.
Such definitions appear to depend on the motivation of the offender.
In the Commission's view, 'if the motivation is to alter seriously
or to destroy the fundamental principles and pillars of the state,
intimidating people, then there is a terrorist offence'.
8.4 Article 2 defines the scope of the Framework
Decision. It is to apply to terrorist offences which are committed
in whole or in part within a Member State, or which are committed
by a national of a Member State. In addition, the Framework Decision
applies to offences which are committed for the benefit of a legal
person established in a Member State, or which are committed against
the institutions or people of a Member State.
8.5 Article 3 of the Decision defines
a terrorist offence as an offence (being one of the acts referred
to in Article 3.1(a) to (m)) which is:
by an individual or a group against one or more countries, their
institutions or people with the aim of intimidating them and seriously
altering or destroying the political, economic, or social structures
of a country'.
8.6 The relevant acts in Article 3.1(a) to (m) include
such offences against the person as murder, 'bodily injuries'
and kidnapping or hostage taking. They also include extortion,
theft or robbery, 'unlawful seizure of or damage to state or government
facilities, means of public transport, infrastructure facilities,
places of public use and property'. In addition, there are included
offences of making or possessing explosives and weapons, releasing
contaminating substances, causing fires, explosions or floods,
endangering people, property or the environment, interfering with
or disrupting the supply of water or power and 'attacks through
interference with an information system'. They are also to include
threats to do any of the above, or 'directing a terrorist group'
or promoting, supporting or participating in a terrorist group.
'Terrorist group' is defined as a 'structured organisation established
over a period of time, of more than two persons, acting in concert
to commit terrorist offences'.
8.7 Articles 4 and 5 deal with connected offences
(such as instigating,
aiding and abetting) and with penalties. Article 6 requires Member
States to ensure that the penalties 'may be increased' in particular
aggravating circumstances. These circumstances include those where
the offence is committed 'with particular ruthlessness' or where
it 'affects a large number of persons or is of a particularly
serious and persistent nature'. The final category seeks to identify,
as constituting an aggravating circumstance, attacks on particular
persons such as 'Heads of State, Government Ministers, internationally
protected persons, elected members of parliamentary chambers,
members of regional or local government, judges, magistrates,
judicial or prison civil servants and police forces.'
8.8 Article 7 provides for 'mitigating circumstances',
requiring Member States to ensure that penalties may be reduced
in circumstances where the offender 'renounces terrorism' or assists
the administrative or judicial authorities with information.
8.9 Article 8 provides for the liability of legal
persons. It requires Member States to ensure that legal persons
can be held liable (although not necessarily criminally liable)
for terrorist offences carried out for their benefit by any person
who has a 'leading position' within the legal person. Article
8(2) provides for the legal person to be held liable where the
lack of supervision or control by a person having a leading position
within the legal person 'has made possible' the commission of
8.10 Article 10 is a key provision dealing with
jurisdiction. Member States are required to make rules to establish
jurisdiction where the offence is committed in whole or in part
within its territory (the territoriality principle). In addition,
optional jurisdictional rules are set out in Article 10.1 (b)
to (d). Under these, each Member State is to establish jurisdiction
(unless it decides otherwise for specific cases), where the offence
is committed by one of its nationals, or is committed for the
benefit of a legal person having its head office in that Member
State, or where the
offence is committed 'against its institutions or people'.
8.11 These grounds of jurisdiction are limited when
compared with those for offences which, by virtue of international
conventions, are crimes of 'universal' jurisdiction i.e. ones
which may be prosecuted by any Contracting State, irrespective
of questions of nationality or territoriality.
It is not clear if Article 10 has the effect of excluding or limiting
the broader grounds of jurisdiction which have become internationally
accepted in this field.
8.12 Article 11 is concerned with extradition. The
Commission explains that these provisions may be overtaken by
the proposed measure on the European arrest warrant. The Article
requires those Member States which do not extradite their own
nationals to make rules to establish jurisdiction over such nationals
where they commit terrorist offences in the territory of another
Member State. As with Article 10, the scope of the provision is
limited, since a number of international conventions already require
States to establish jurisdiction where they do not extradite,
whether or not the person in question is a national.
8.13 Articles 12 and 13 deal with co-operation and
exchange of information. Article 14 is a provision which is described
as being for the protection of victims. It provides that the investigation
or prosecution of a terrorist offence should not be 'dependent
on the report or accusation made by a victim of the offence, at
least in cases where Article 8 (1)(a) applies'. The Commission
explains that victims of certain kinds of terrorist offences,
such as threats or extortion, are vulnerable and that it is therefore
appropriate to ensure that investigations or prosecutions are
not dependent on reports or accusations by a person subject to
the offence. The Commission does not indicate if this is the case
in any Member State. Moreover, provision has already been made
for the protection of prosecution witnesses and the victims of
crime in 2001/201/JHA Council Framework Decision on the standing
of victims in criminal proceeding.
It is far from clear why the provision made in Article 14 is particularly
necessary in the case of offences by legal persons.
8.14 Articles 15 and 16 deal with implementation,
reports and entry into force. Member States are required to comply
with the Framework Decision by the end of 2002.
The Government's view
8.15 In his brief Explanatory Memorandum, the Parliamentary
Under-Secretary of State at the Home Office (Mr Bob Ainsworth)
explains that the measure is aimed at reinforcing criminal law
measures within the Member States to combat terrorism. The Minister
describes the policy implications of the measure as follows:
"No major policy implications.
While the proposal should help Member States strengthen where
needed their domestic legislation, the UK already possesses comprehensive
counter-terrorist legislation, which we are looking to strengthen
further in response to the 11 September attacks in the United
States through the introduction of an Emergency Anti-Terrorism
8.16 We would have found it helpful if the Minister
had explained more fully how the proposal would affect the law
of the United Kingdom, in particular how it compares with the
provisions of the Terrorism Act 2000.
8.17 In a number of respects, the proposal appears
to us to be not well adapted to terrorist crimes, and we ask the
Minister if he agrees that the provisions on sanctions and aggravating
or mitigating circumstances are neither necessary nor helpful.
8.18 We would be grateful if the Minister would
explain how the provisions of Article 8 on liability of legal
persons would operate, if at all, in relation to a body such as
a terrorist organisation which has no recognised legal status.
8.19 We note with concern the very limited nature
of the provisions on jurisdiction. These appear to us to fall
short of the requirements of international conventions in this
area, notably of the United Nations Conventions on the Suppression
of Terrorist Bombings and the Suppression of Financing Terrorism,
which, for example, require (and do not merely permit) States
to establish jurisdiction over their own nationals, irrespective
of the place where the offence is committed. We ask the Minister
for his comments on the question of jurisdiction and, in particular,
if he can assure us that the Framework Decision will not have
the effect of limiting the broader grounds of jurisdiction which
have become internationally accepted in this field.
8.20 We ask the Minister to explain the purpose
and effect of Article 14, in particular as to why the protection
of victims is thought to be particularly necessary where liability
in respect of terrorist offences is to be imputed to a legal person.
It seems to us that the provision is either unnecessary (because
provision has already been made in the Framework Decision on the
Standing of Victims in Criminal Procedure), or that it should
apply to terrorist offences generally.
8.21 We ask the Minister to ensure that we receive
his reply in time to consider the document again before any decisions
12 That is, the requirement that given conduct should
be criminal in both the state requesting extradition and the state
granting extradition. Back
definition is therefore very similar to that contained in s.1
Terrorism Act 2000. An equivalent to Article 3.1(a) to (m) is
found in s.1(2). The equivalent provisions on motivation are contained
in s.1(1)(a) and (b) which refer to the use or threat of action;
'(b) which is designed to influence the government or to intimidate
the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political,
religious or ideological cause'. Back
is not clear if incitement is also included. Back
the Commission's Explanatory Memorandum on Article 8. Back
is not clear that the concepts of a 'legal person' or a 'head
office' are particularly useful in the context of terrorist organisations,
since these are unlikely to enjoy any legal recognition in the
Member States. The Terrorism Act 2000 (s.121) refers instead to
'organisation' as 'any association or combination of persons',
and no question of legal status arises. Back
example, Article 6 of the 1997 UN Convention for the Suppression
of Terrorist Bombings requires (not merely permits) States to
establish jurisdiction where the offence is committed by one of
its own nationals. By virtue of Article 6.4 of that Convention,
a State is required to establish jurisdiction where the offender
is present within its territory and it does not extradite the
offender to another State party to the Convention. Such extended
jurisdiction is provided for in s.62 and 63 Terrorism Act 2000. Back
Articles 6 and 8 of the UN Conventions for the Suppression of
Terrorist Bombings, and for the Suppression of Financing Terrorism.
11855/00; see HC 28-i (2000-01), paragraph 2 (13 December 2000). Back