29/08/2002 Anti Terrorism Legislation: Europe and Italy Federico Micali
In the wake of the attack in the United States on September 11, European Union has introduced a number of measures to protect itself against future terrorist attacks, which will affect the fundamental rights in the democracies within it.
At first, the European Commission presented a proposal for a "framework decision on combating terrorism" to the special meeting of the European Union Justice and Home affairs Ministers in Brussels on 20 September.
Any decision is likely to be confirmed by the Special Prime Ministers Summit on 21 of September
With the proposal the Commission intended to put in place a common definition of terrorism and the key provision is the one defining terrorist offences in article 3 which are literally the offences
" which are intentionally committed 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 those countries "
It listed a series of offences: article 4 extends the definition to include "instigating, aiding, abetting or attempting to commit a terrorist offence".
Suddenly the Commissions proposal give the question whether it is solely intended to "combat terrorism or that definition of terrorism should cover demonstrations and political dissent as well:
The question of a wider proposal can be found upon a deeper analysis of the text
• the use of the term such as "the alteration of the political, economic or social structures by an individual or group" in the definition of terrorism
• the inclusion in the list of the typical offences the " Unlawful seizure of or damage to state or government facilities, means of public transport, infrastructure facilities, places of public use, and property" (property covers public and private):
this could cover a wide range of demonstrations and protests, the events in Genova, in particular, come to mind.
The souspicious becomes more justified upon reading the "Explanatory memorandum" which follows the proposal:
in that memorandum it is said that article 3 defying terrorist offences "could include, for instance, urban violence"
Public order situations seems to be thus under the coverage of the European definition of terrorism!
After the Commission proposal several plans post 11 September have been set out in a number of documents:
The General Plan was set out in the Conclusions of the Special Meeting of Justice and Home Affair Ministers on 20 September, and this was followed an "Anti Terrorism RoadMAp".
At the same time the European Council met in extraordinary session on 21 September in order to analyse the international situation following the terrorist attack in the United States and to impart the necessary impetus to the action of the European Union: id est. the "solidarity and cooperation with the United States and the plan of action for the European Policy to combat terrorism".
It is useless to say that the agenda is already unbalanced in favour of facilitating the free movement of investigations and prosecutions ahead of the need to guarantee the fundamental rights of suspects and defendant.
Therefore human rights organisation and civil society groups, have issued reports asking the respect of the civil liberties with deep critics to the proposed measures.
A.I. said that "in Europe and elsewhere governments are rushing to the top of their political agendas laws that threaten to curb civil liberties and possibly reduce safeguards against abuses of human rights.
Therefore A.I. appealed to European Union to ensure that any measures adopted to guarantee security are in full compliance with international human rights laws and standards especially regarding to the freedom of expression and association and the rights of minorities and in particular of asylum seekers.
On these bases, the 7 December the European Union Justice and Home Affairs Council reached a Political agreement on the Framework Decision on combating terrorism which will be formally adopted by a latter Council.
Using the words of the final press release, the final text is a balance between the needs to combat terrorism and legitimate activities like trade union and anti-globalisation protest.
Terrorist offences are now including
intentional acts, by their nature and context, which may be seriously damaging to a country or to an international organisation, as defined under national law, where committed with the aim of:
(i) seriously intimidating a population, or
(ii) unduly compelling a Government or international organisation to perform or to abstain from performing any act, or
(iii) destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or international organisation"
and the new article 1.e (former art.3.f on the commission draft) stated that the aim of
causing extensive damage to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on a continental shelf, a public place or private property likely to put in danger human lives or produce considerable economic loss"
[The inclusion of "a fixed platform located on a continental shelf" is new and could embrace the occupation of the "Brent Spa" oil platform by Greenpeace.]
Finally, article 2 states that
"terrorist group shall mean a structured group of more than 2 persons established over a period of time and acting in concert to commit terrorist offences"
The objections by civil society to the breadth of the definition is reflected in Recital 10 which says:
"Nothing in this Framework Decision may be interpreted as being intended to reduce or restrict fundamental rights or freedoms such as the freedom of assembly or 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"
This position is supported by the attached Declaration saying expressly that protest and other political activities would not be covered by the definition of terrorism, but that declaration is not binding and without formal legal force.
The new framework, if is better than the previous one, could still cover the civil protests and the freedom of expression.
It is however difficult to believe that the expression which identifies the aim of unduly compelling a Government or international organisation to perform or to abstain from performing any act is not covering the protests to summit and meetings, especially connected to " extensive damage to government or private property.
Here I can reed the note: have a look to Genoa!!
In fact the final test will be the ways in which Member States will use this definition.
** Moreover, as a Christmas Present, on 27 December the Council of the European Union adopted four Acts by "written procedure" on "terrorism".
The adoption of the Common Positions by the Council of the European Union by "written procedure" were made under Article 15 of the Treaty on European Union which gives a very general power simply to "adopt common positions" .
"Member States shall ensure that their national policies conform to the common positions".
Therefore Common Positions are thus binding on all EU Member States but do not have to be submitted to national or European parliaments for scrutiny, they are simply adopted.
By choosing to adopt these measures as Common Positions the Council has not only bypassed
the European Parliament, it also means that their validity cannot be challenged before
the Court of Justice.
The first Common Position, which is called "Common Position on combating terrorism" requires to Member States to "prevent the public from offering any form of support active or passive, to person or entities involved in terrorist acts".
Passive support may mean that people with the same goal of terrorists should be prosecute for "passive support" even without awareness: is indeed missing any difference between terrorist groups and liberation movements.
Even worst appear to be the article 16 which states that
"Appropriate measures shall be taken [in accordance with the relevant provisions of national and international law, including international standards on human rights]
before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts."
All the asylum-seekers and refugees are subject to a strict control by the police and security services before their status can be granted.
Statewatch organisation notetd how this provision, taken in conjunction with Article 4 of the EU Common Position covering "any form of support, active or passive" for terrorist activities, could mean that a person who had helped raise funds to support the humanitarian needs of , say PKK prisoners in Turkish jails, could be refused refugee status.
Moreover, the interface of surveillance and intelligence-gathering to combat terrorism and
"illegal immigration" can easily be combined.(v. nuova legge Bossi Fini)
The second Common position follows the proposed framework decision definition of terrorism; by the way, the new definition fails to call any reference to human rights.
Finally it is important to mention the position of the European Union Data Protection working party, especially related to data retention and the gathering of information on individuals:
The Chairman Mr. Rodota felt the need to say that
"measures against terrorism should not and need not reduce standards of protection of fundamental rights which characterize democratic societies"
Having a look to Italian anti terrorist legislation it has to underline the actual subjection of the present government to the USA politic.
I would just briefly remember the public demostration with flags and American songs in support of the United States (and of the war) organized by the first party Forza Italia.
Anyway, the 18 October 2001 a law decree extended the former anti terrorist legislation to the international crimes with the aim of terrorism
On december 15th the law decree came out in the Law n. 438/2001 with few modifications:
therefore the emended article 271bis of criminal code states about the criminal category of
"association with the aim of terrorism even international" (it sounds bad in italian too).
It will affect people who "promote, establish, organise, direct or finance, associations" intending to commit acts of violence on persons or things for terrorist scopes or subversion.
The punishment for such offences ranges from seven to 15 years, whereas five to ten year sentences are applicable for participation in such an association.
The aim of terrorism sussists even when the actions are directed against a foreign State, institution or international organisation
Moreover, offering refuge, hospitality, means of transport or instruments for communication to persons participating in such associations are offences carrying sentences of up to four years in prison.
The main developments are- at sight- the extension of anti-terrorist powers to international terrorism and the financing of terrorist associations.
The real problem is what is intended exactly for "international terrorism":
the new law dont give any further definition and the description of what constitutes international terrorism will probably follow the EU Common Position.
Therefore the inclusion of acts of violence to the detriment of "a foreign State, institution or international organisation" could also be used against protest movements
And this gives out some more worries considering the (partially) new legislation on anti terrorist power which include the possibility of preventative detention during preliminary investigations for a period which was extended from 18 to 24 months on 7 May 2001 by the previous government.
The new law also considers the possibility of undercover activities, whereby there would be no sanctions against agents whose actions are covered by previous judicial authorisation, and preventative surveillance in the form of interceptions of telecommunications (including e-mails). These interceptions must be authorised by a magistrate for a maximum period of forty days, which can be extended by a further twenty days.
All the worries are thus justified for a text which is incomplete in the substantial part and deep in the procedural section.
Someone is worried that such legislation could be applied to demonstrations against EU summits or meetings of organisations such as the IMF and G8, if they are characterised by violence.
But it is useless to remember the behaviour of police and states authorities in Genova and after Genova even before this new legislation.
