Considerations on COM(2015)625 - Combating terrorism - Main contents
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| dossier | COM(2015)625 - Combating terrorism. |
|---|---|
| document | COM(2015)625  |
| date | March 15, 2017 |
| (2) | Acts of terrorism constitute one of the most serious violations of the universal values of human dignity, freedom, equality and solidarity, and enjoyment of human rights and fundamental freedoms on which the Union is founded. They also represent one of the most serious attacks on democracy and the rule of law, principles which are common to the Member States and on which the Union is based. |
| (3) | Council Framework Decision 2002/475/JHA (3) is the cornerstone of the Member States’ criminal justice response to counter terrorism. A legal framework common to all Member States, and in particular, a harmonised definition of terrorist offences, serves as a benchmark for information exchange and cooperation between the competent national authorities under Council Framework Decision 2006/960/JHA (4), Council Decisions 2008/615/JHA (5) and 2005/671/JHA (6), Regulation (EU) No 603/2013 of the European Parliament and of the Council (7), and Council Framework Decisions 2002/584/JHA (8) and 2002/465/JHA (9). |
| (4) | The terrorist threat has grown and rapidly evolved in recent years. Individuals referred to as ‘foreign terrorist fighters’ travel abroad for the purpose of terrorism. Returning foreign terrorist fighters pose a heightened security threat to all Member States. Foreign terrorist fighters have been linked to recent attacks and plots in several Member States. In addition, the Union and its Member States face increased threats from individuals who are inspired or instructed by terrorist groups abroad but who remain within Europe. |
| (5) | In its Resolution 2178 (2014), the UN Security Council expressed its concern over the growing threat posed by foreign terrorist fighters and required all Member States of the UN to ensure that offences related to this phenomenon are punishable under national law. The Council of Europe has, in this respect, adopted in 2015 the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism. |
| (6) | Taking account of the evolution of terrorist threats to and legal obligations on the Union and Member States under international law, the definition of terrorist offences, of offences related to a terrorist group and of offences related to terrorist activities should be further approximated in all Member States, so that it covers conduct related to, in particular, foreign terrorist fighters and terrorist financing more comprehensively. These forms of conduct should also be punishable if committed through the internet, including social media. |
| (7) | Furthermore, the cross-border nature of terrorism requires a strong coordinated response and cooperation within and between the Member States, as well as with and among the competent Union agencies and bodies to counter terrorism, including Eurojust and Europol. To that end, efficient use of the available tools and resources for cooperation should be made, such as joint investigation teams and coordination meetings facilitated by Eurojust. The global character of terrorism necessitates an international answer, requiring the Union and its Member States to strengthen cooperation with relevant third countries. A strong coordinated response and cooperation is also necessary with a view to securing and obtaining electronic evidence. |
| (8) | This Directive exhaustively lists a number of serious crimes, such as attacks against a person’s life, as intentional acts that can qualify as terrorist offences when and insofar as committed with a specific terrorist aim, namely to seriously intimidate a population, to unduly compel a government or an international organisation to perform or abstain from performing any act, or to seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation. The threat to commit such intentional acts should also be considered to be a terrorist offence when it is established, on the basis of objective circumstances, that such threat was made with any such terrorist aim. By contrast, acts aiming, for example, to compel a government to perform or abstain from performing any act, without however being included in the exhaustive list of serious crimes, are not considered to be terrorist offences in accordance with this Directive. |
| (9) | The offences related to terrorist activities are of a very serious nature as they have the potential to lead to the commission of terrorist offences and enable terrorists and terrorist groups to maintain and further develop their criminal activities, justifying the criminalisation of such conduct. |
| (10) | The offence of public provocation to commit a terrorist offence act comprises, inter alia, the glorification and justification of terrorism or the dissemination of messages or images online and offline, including those related to the victims of terrorism as a way to gather support for terrorist causes or to seriously intimidate the population. Such conduct should be punishable when it causes a danger that terrorist acts may be committed. In each concrete case, when considering whether such a danger is caused, the specific circumstances of the case should be taken into account, such as the author and the addressee of the message, as well as the context in which the act is committed. The significance and the credible nature of the danger should be also considered when applying the provision on public provocation in accordance with national law. |
| (11) | Criminalisation of receiving training for terrorism complements the existing offence of providing training and specifically addresses the threats resulting from those actively preparing for the commission of terrorist offences, including those ultimately acting alone. Receiving training for terrorism includes obtaining knowledge, documentation or practical skills. Self-study, including through the internet or consulting other teaching material, should also be considered to be receiving training for terrorism when resulting from active conduct and done with the intent to commit or contribute to the commission of a terrorist offence. In the context of all of the specific circumstances of the case, this intention can for instance be inferred from the type of materials and the frequency of reference. Thus, downloading a manual to make explosives for the purpose of committing a terrorist offence could be considered to be receiving training for terrorism. By contrast, merely visiting websites or collecting materials for legitimate purposes, such as academic or research purposes, is not considered to be receiving training for terrorism under this Directive. |
| (12) | Considering the seriousness of the threat and the need, in particular, to stem the flow of foreign terrorist fighters, it is necessary to criminalise outbound travelling for the purpose of terrorism, namely not only the commission of terrorist offences and providing or receiving training but also the participation in the activities of a terrorist group. It is not indispensable to criminalise the act of travelling as such. Furthermore, travel to the territory of the Union for the purpose of terrorism presents a growing security threat. Member States may also decide to address terrorist threats arising from travel for the purpose of terrorism to the Member State concerned by criminalising preparatory acts, which may include planning or conspiracy, with a view to committing or contributing to a terrorist offence. Any act of facilitation of such travel should also be criminalised. |
| (13) | Illicit trade in firearms, oil, drugs, cigarettes, counterfeit goods and cultural objects, as well as trafficking in human beings, racketeering and extortion have become lucrative ways for terrorist groups to obtain funding. In this context, the increasing links between organised crime and terrorist groups constitute a growing security threat to the Union and should therefore be taken into account by the authorities of the Member States involved in criminal proceedings. |
| (14) | Directive (EU) 2015/849 of the European Parliament and of the Council (10) establishes common rules on the prevention of the use of the Union’s financial system for the purposes of money laundering or terrorist financing. In addition to this preventive approach, terrorist financing should be punishable in the Member States. Criminalisation should cover not only the financing of terrorist acts, but also the financing of a terrorist group, as well as other offences related to terrorist activities, such as the recruitment and training, or travel for the purpose of terrorism, with a view to disrupting the support structures facilitating the commission of terrorist offences. |
| (15) | The provision of material support for terrorism through persons engaging in or acting as intermediaries in the supply or movement of services, assets and goods, including trade transactions involving the entry into or exit from the Union, such as the sale, acquisition or exchange of a cultural object of archaeological, artistic, historical or scientific interest illegally removed from an area controlled by a terrorist group at the time of the removal, should be punishable, in the Member States, as aiding and abetting terrorism or as terrorist financing if performed with the knowledge that these operations or the proceeds thereof are intended to be used, in full or in part, for the purpose of terrorism or will benefit terrorist groups. Further measures may be necessary with a view to effectively combating the illicit trade in cultural objects as a source of income for terrorist groups. |
| (16) | The attempt to travel for the purpose of terrorism, to provide training for terrorism and to recruit for terrorism should be punishable. |
| (17) | With regard to the criminal offences provided for in this Directive, the notion of intention must apply to all the elements constituting those offences. The intentional nature of an act or omission may be inferred from objective, factual circumstances. |
| (18) | Penalties and sanctions should be provided for natural and legal persons being liable for such offences, which reflect the seriousness of such offences. |
| (19) | When recruitment and training for terrorism are directed towards a child, Member States should ensure that judges can take this circumstance into account when sentencing offenders, although there is no obligation on judges to increase the sentence. It remains within the discretion of the judge to assess that circumstance together with the other facts of the particular case. |
| (20) | Jurisdictional rules should be established to ensure that the offences laid down in this Directive may be effectively prosecuted. In particular, it appears appropriate to establish jurisdiction for the offences committed by the providers of training for terrorism, whatever their nationality, in view of the possible effects of such conducts on the territory of the Union and of the close material connection between the offences of providing and receiving training for terrorism. |
| (21) | To ensure the success of investigations and the prosecution of terrorist offences, offences related to a terrorist group or offences related to terrorist activities, those responsible for investigating or prosecuting such offences should have the possibility to make use of effective investigative tools such as those which are used in combating organised crime or other serious crimes. The use of such tools, in accordance with national law, should be targeted and take into account the principle of proportionality and the nature and seriousness of the offences under investigation and should respect the right to the protection of personal data. Such tools should, where appropriate, include, for example, the search of any personal property, the interception of communications, covert surveillance including electronic surveillance, the taking and the keeping of audio recordings, in private or public vehicles and places, and of visual images of persons in public vehicles and places, and financial investigations. |
| (22) | An effective means of combating terrorism on the internet is to remove online content constituting a public provocation to commit a terrorist offence at its source. Member States should use their best endeavours to cooperate with third countries in seeking to secure the removal of online content constituting a public provocation to commit a terrorist offence from servers within their territory. However, when removal of such content at its source is not feasible, mechanisms may also be put in place to block access from Union territory to such content. The measures undertaken by Member States in accordance with this Directive in order to remove online content constituting a public provocation to commit a terrorist offence or, where this is not feasible, block access to such content could be based on public action, such as legislative, non-legislative or judicial action. In that context, this Directive is without prejudice to voluntary action taken by the internet industry to prevent the misuse of its services or to any support for such action by Member States, such as detecting and flagging terrorist content. Whichever basis for action or method is chosen, Member States should ensure that it provides an adequate level of legal certainty and predictability for users and service providers and the possibility of judicial redress in accordance with national law. Any such measures must take account of the rights of the end users and comply with existing legal and judicial procedures and the Charter of Fundamental Rights of the European Union (the Charter). |
| (23) | The removal of online content constituting a public provocation to commit a terrorist offence or, where it is not feasible, the blocking of access to such content, in accordance with this Directive, should be without prejudice to the rules laid down in Directive 2000/31/EC of the European Parliament and of the Council (11). In particular, no general obligation should be imposed on service providers to monitor the information which they transmit or store, nor to actively seek out facts or circumstances indicating illegal activity. Furthermore, hosting service providers should not be held liable as long as they do not have actual knowledge of illegal activity or information and are not aware of the facts or circumstances from which the illegal activity or information is apparent. |
| (24) | To combat terrorism effectively, efficient exchange of information considered to be relevant by the competent authorities for the prevention, detection, investigation or prosecution of terrorist offences between competent authorities and Union agencies, is crucial. Member States should ensure that information is exchanged in an effective and timely manner in accordance with national law and the existing Union legal framework, such as Decision 2005/671/JHA, Council Decision 2007/533/JHA (12) and Directive (EU) 2016/681 of the European Parliament and of the Council (13). When considering whether to exchange relevant information, national competent authorities should take into account the serious threat posed by terrorist offences. |
| (25) | To strengthen the existing framework on information exchange in combating terrorism, as set out in Decision 2005/671/JHA, Member States should ensure that relevant information gathered by their competent authorities in the framework of criminal proceedings, for example, law enforcement authorities, prosecutors or investigative judges, is made accessible to the respective competent authorities of another Member State to which they consider this information could be relevant. As a minimum, such relevant information should include, as appropriate, the information that is transmitted to Europol or Eurojust in accordance with Decision 2005/671/JHA. This is subject to Union rules on data protection, as laid down in Directive (EU) 2016/680 of the European Parliament and of the Council (14) and without prejudice to Union rules on cooperation between competent national authorities in the framework of criminal proceedings, such as those laid down in Directive 2014/41/EU of the European Parliament and of the Council (15) or Framework Decision 2006/960/JHA. |
| (26) | Relevant information gathered by competent authorities of the Member States in the framework of criminal proceedings in connection with terrorist offences should be exchanged. The term ‘criminal proceedings’ is understood to cover all stages of the proceedings, from the moment a person is suspected or accused of having committed a criminal offence until the decision on the final determination of whether that person committed the criminal offence concerned has become definitive. |
| (27) | Member States should adopt measures of protection, support and assistance responding to the specific needs of victims of terrorism, in accordance with Directive 2012/29/EU of the European Parliament and the Council (16) and as further qualified by this Directive. A victim of terrorism is that defined in Article 2 of Directive 2012/29/EU, namely a natural person who has suffered harm, including physical, mental or emotional harm or economic loss, insofar as that was directly caused by a terrorist offence, or a family member of a person whose death was directly caused by a terrorist offence and who has suffered harm as a result of that person’s death. Family members of surviving victims of terrorism, as defined in that Article, have access to victim support services and protection measures in accordance with that Directive. |
| (28) | The assistance with victims’ compensation claims is without prejudice and in addition to the assistance which victims of terrorism receive from assisting authorities in accordance with Council Directive 2004/80/EC (17). This is without prejudice to the national rules on legal representation for claiming compensation, including through legal aid arrangements, and any other relevant national rules on compensation. |
| (29) | Member States should ensure that a comprehensive response to the specific needs of victims of terrorism immediately after a terrorist attack and for as long as necessary is provided within the national emergency-response infrastructure. To that end, Member States may set up a single and updated website with all relevant information and an emergency support centre for victims and their family members providing for psychological first aid and emotional support. Initiatives of Member States in this respect should be supported by making full use of available common assistance mechanisms and resources at Union level. Support services should take into account that specific needs of victims of terrorism may evolve over time. In that regard, the Member States should ensure that support services address in the first place at least the emotional and psychological needs of the most vulnerable victims of terrorism, and inform all victims of terrorism about the availability of further emotional and psychological support including trauma support and counselling. |
| (30) | Member States should ensure that all victims of terrorism have access to information about victims’ rights, available support services and compensation schemes in the Member State where the terrorist offence was committed. Member States concerned should take appropriate action to facilitate cooperation with each other in order to ensure that victims of terrorism who are residents of a Member State other than that where the terrorist offence was committed, have effective access to such information. Moreover the Member States should ensure that victims of terrorism have access to long-term support services in the Member State of their residence, even if the terrorist offence took place in another Member State. |
| (31) | As reflected in the revised EU Strategy for Combating Radicalisation and Recruitment to Terrorism of 2014 and in the Conclusions of the Council of the European Union and of the Member States meeting within the Council on enhancing the criminal justice response to radicalisation leading to terrorism and violent extremism of 2015, prevention of radicalisation and recruitment to terrorism, including radicalisation online, requires a long-term, proactive and comprehensive approach. Such approach should combine measures in the area of criminal justice with policies in the fields of education, social inclusion and integration, as well as the provision of effective deradicalisation or disengagement and exit or rehabilitation programmes, including in the prison and probation context. Member States should share good practices on effective measures and projects in this field, in particular as regards foreign terrorist fighters as well as returnees, where appropriate in cooperation with the Commission and the relevant Union agencies and bodies. |
| (32) | Member States should pursue their efforts to prevent and counter radicalisation leading to terrorism by coordinating, by sharing information and experience on national prevention policies, and by implementing or, as the case may be, updating national prevention policies taking into account their own needs, objectives and capabilities building on their own experiences. The Commission should, where appropriate, provide support to national, regional and local authorities in developing prevention policies. |
| (33) | Member States should, depending on the relevant needs and particular circumstances in each Member State, provide support to professionals, including civil society partners likely to come in contact with persons vulnerable to radicalisation. Such support measures may include, in particular, training and awareness-raising measures aimed at enabling them to identify and address signs of radicalisation. Such measures should, where appropriate, be taken in cooperation with private companies, relevant civil society organisations, local communities and other stakeholders. |
| (34) | Since the objectives of this Directive cannot be sufficiently achieved by the Member States but can rather, by reason of the need for Union-wide harmonised rules, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity, as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. |
| (35) | This Directive respects the principles recognised by Article 2 TEU, respects fundamental rights and freedoms and observes the principles recognised, in particular, by the Charter, including those set out in Titles II, III, V and VI thereof which encompass, inter alia, the right to liberty and security, freedom of expression and information, freedom of association and freedom of thought, conscience and religion, the general prohibition of discrimination, in particular on grounds of race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, the right to respect for private and family life and the right to protection of personal data, the principles of legality and proportionality of criminal offences and penalties, covering also the requirement of precision, clarity and foreseeability in criminal law, the presumption of innocence as well as freedom of movement as set out in Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) and in Directive 2004/38/EC of the European Parliament and of the Council (18). This Directive has to be implemented in accordance with those rights and principles taking also into account the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and other human rights obligations under international law. |
| (36) | This Directive is without prejudice to the Member States’ obligations under Union law with regard to the procedural rights of suspects or accused persons in criminal proceedings. |
| (37) | This Directive should not have the effect of altering the rights, obligations and responsibilities of the Member States under international law, including under international humanitarian law. This Directive does not govern the activities of armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of those terms under that law, and, inasmuch as they are governed by other rules of international law, activities of the military forces of a State in the exercise of their official duties. |
| (38) | The provision of humanitarian activities by impartial humanitarian organisations recognised by international law, including international humanitarian law, do not fall within the scope of this Directive, while taking into account the case-law of the Court of Justice of the European Union. |
| (39) | The implementation of criminal law measures adopted under this Directive should be proportional to the nature and circumstances of the offence, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness, racism or discrimination. |
| (40) | Nothing in this Directive should be interpreted as being intended to reduce or restrict the dissemination of information for scientific, academic or reporting purposes. The expression of radical, polemic or controversial views in the public debate on sensitive political questions, falls outside the scope of this Directive and, in particular, of the definition of public provocation to commit terrorist offences. |
| (41) | In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application. |
| (42) | In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application. |
| (43) | This Directive should therefore replace Framework Decision 2002/475/JHA with regard to the Member States bound by this Directive and amend Decision 2005/671/JHA, |