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Brussels, 6.11.2007

SEC(2007) 1463

COMMISSION STAFF WORKING DOCUMENT Annex to the

REPORT FROM THE COMMISSION based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism (COM(681) final)

TABLE OF CONTENTS

1. Article 1 – Terrorist offences and fundamental rights and principles 5

1.1. National systems 5

1.2. Assessment 9

1.3. Obligation to respect fundamental rights and fundamental legal principles under Article 1(2) 12

2. Article 2 – Offences relating to a terrorist group 12

2.1. National systems 13

2.2. Assessment 17

3. Article 3 – Offences linked to terrorist activities 19

4. Article 4 – Inciting, aiding or abetting, and attempting 22

4.1. National Systems 22

4.2. Assessment 24

5. Article 5 - Penalties 25

5.1. National Systems 26

5.1.1. Article 5(1) 26

5.1.2. Article 5(2) 26

5.1.3. Article 5(3) 28

6. Article 6: Particular circumstances 30

6.1. National Systems 30

6.2. Assessment 33

7. Articles 7: Liability of legal persons 34

7.1. National Systems 34

7.2. Assessment 37

8. Article 8: Penalties for legal persons 38

8.1. National Systems 38

8.2. Assessment 40

9. Article 9: Jurisdiction and prosecution 41

9.1. National Systems 41

9.2. Article 9 (1)(a), (b) and (4) 42

9.3. Article 9(1) (c) - (e) 42

9.4. Positive conflicts of jurisdiction, Article 9(2) 44

9.5. Article 9(3) 45

9.6. Assessment 46

10. Article 10 – Protection of, and assistance to, victims 47

Detailed analysis of Member States evaluated for the second time 48

INTRODUCTION 48

1. Article 1: Terrorist offences 49

2. Article 2: Offences relating to a terrorist group 51

2.1. Article 2(1) 51

2.2. Article 2(2) 51

2.3. Conclusion 56

3. Article 3: Offences linked to terrorist activities 56

3.1. Conclusion 58

4. Article 4: Inciting, aiding or abetting, and attempting 58

4.1. Additional comments by Member States 59

4.2. Conclusion 60

5. Article 5: Penalties 60

5.1. Article 5(3) 60

5.1.1. Additional comments by Member States 61

5.1.2. Conclusion 63

5.2. Article 5(2) 63

5.3. Conclusion 64

6. Article 6 – Particular circumstances 65

7. Article 7 – Liability of legal persons 65

7.1. Article 7(1) 65

7.2. Article 7(2) 66

7.3. Conclusion 67

8. Article 8 – Penalties for legal persons 67

9. Article 9 – Jurisdiction and prosecution 68

9.1. Article 9(1)(a), (b) and (4) 68

9.2. Article 9(1)(c)-(e) and (3) 68

9.3. Article 9(2) 70

9.4. Conclusion 70

10. Article 10: Protection of, and assistance to, victims 70

10.1. Article 10(1) 70

10.2. Article 10(2) 71

10.3. Conclusion 72

1. ARTICLE 1 – TERRORIST OFFENCES AND FUNDAMENTAL RIGHTS AND PRINCIPLES

1.1. National systems

Like most old Member States evaluated in 2004, Greece, Luxembourg and the Netherlands did not have specific legislation on terrorism prior to the Framework Decision[1]. Similarly, new Member States did not have separate terrorist offences before joining the European Union. In the vast majority of them, terrorist actions were punished only as ordinary offences. As the first evaluation report points out, the main purpose of Article 1 is to harmonise the definition of terrorist offences in all Member States by introducing a specific and common definition of certain acts as terrorist offences.[2] Most terrorist acts are, it explains, basically serious ordinary offences which become terrorist offences due to the motivation of the offender. The Framework Decision's concept of terrorism is thus a combination of two elements: an objective element, as it refers to a list of instances of serious criminal conduct, as defined by reference to national law, and a subjective element, as these acts are to be deemed to be terrorist offences when committed with a specific intent[3]. Several of the Member States evaluated for the first time adopted transposing provisions in which the definition of terrorist intent follows very closely that contain in the Framework Decision. With regard to the objective element, specific transposing provisions were not generally adopted. Member States often referred to existing offences under national law which only in some cases were listed and defined as terrorist offences.

Cyprus has sent the text of "The 2006 Terrorism and Related Matters Bill"[4], wherein terrorist offences are broadly defined. Indeed, all offences included in Part II of the bill are defined as terrorist offences. However, only Sections 6 to 8 and 15 of the said Part deal with terrorist offences as defined by Article 1 of the Framework Decision. Section 6 constitutes the main provision, covering most offences listed in the European instrument. It links the intentional element as defined under the Framework Decision to several offences under the Cypriot Criminal Code, the national Firearms and Non-Firearms Act and various national laws ratifying international conventions, such as the 1972 Convention for the Suppression of Unlawful Seizure of Aircraft.

The Czech Republic amended its Criminal Code so that the definition of terrorist attack contains both a subjective and an objective element. The latter consists of an exhaustive list which very accurately corresponds to the punishable set out in Article 1(1). As for the terrorist intention, the wording seems to lay down a national scope, as it focuses on terrorist attacks against the Czech Republic. However, the last paragraph of the Section extends to foreign States the protection provided for under the provision and, therefore, conveniently introduces an international dimension.

Article 237 of the Estonian Criminal Code has been amended[5] to include a list of relevant behaviour and a subjective element which follows very closely the terrorist intention defined in the Framework Decision. Unfortunately, most of the enumerated types of behaviour are too generally described (i.e. "offences threatening international or personal security, endangering life, health or the environment or of a generally dangerous nature"). A higher degree of precision would be desirable from the point of view of legal certainty.

The new Article 187A introduced in the Greek Criminal Code refers to "acts of terrorism". Its paragraph 1 includes both a subjective element which follows very closely the wording of the Framework Decision and an extended list of actions including, at least, most forms of behaviour covered by the Framework Decision. The list refers to existing offences under the Greek Criminal Code and other legal instruments (such as the legislative decree 781/1974 on "Protection from ionising radiations" or the Code of Aviation ratified by law 1815/1988), pointing out the relevant Articles. Paragraph 3 of Article 187A incriminates separately the behaviour of those who seriously threaten to commit the offences listed in paragraph 1 of the same provision.

The Hungarian Criminal Code introduces the notion of terrorist offences in Article 261, which includes both the terrorist intent (paragraph 1) and a list of acts (paragraphs 2, 7 and 9) that are qualified as terrorist offences. Paragraph 1 reproduces the definition of the subjective element of the Framework Decision, linking it to the listed behaviour of paragraph 9 (a), which contains at list of the forms of behaviour included in the Framework Decision as well as others that are not foreseen in this instrument (i.e. deliberate endangering of persons at work, violence against officials or robbery). Each of the acts enumerated in paragraph 9 (a) includes a reference to the article of the Criminal Code where the behaviour is incriminated as an ordinary offence. Paragraph 2 links terrorist intent to the seizure of significant material assets making their release dependant on a demand to the State or an international organisation. It introduces in this manner an additional form of behaviour as a terrorist offence which is not foreseen in the Framework Decision. Paragraph 7 makes threatening to commit the offences in paragraphs 1 and 2 punishable.

The Latvian definition of terrorist offences is divided into two: offences committed with the purpose of "harming the Republic of Latvia or its inhabitants" and offences committed with the purpose of "inducing the State, its institutions or international organisations to take any action or to refrain there from". It seems, therefore, that in both cases terrorist offences are limited to a national scope by the intentional element. Concerning the objective element, the first definition consists of a rather detailed list of actions although it does not include all the forms of conduct covered by the Framework Decision while the second definition is of a much more general nature.

Besides these concepts of terrorism, Latvia refers to Sections 153 –kidnapping-, 154 -seizure of hostages-, 233 - unauthorised manufacture, repair, acquisition, storage, carrying transportation, transfer, sale or breach of sale conditions of firearms, munitions, weapons and explosive- and 268 – seizure of air and water transport vehicle. None of these offences are designated as terrorist offences and only Section 154 includes a subjective element which covers the terrorist intent as laid down by Article 1(1).

Under the Lithuanian system, terrorist offences are expressly dealt with by Article 250 of the Criminal Code, where unfortunately the subjective element is missing[6]. The provision consists of a list that does not cover all the offences listed in the Framework Decision. Nevertheless, Lithuania refers to several other provisions of the Criminal Code that, without being defined as terrorist offences nor referring to terrorism, make punishable most types of conduct listed under the Framework Decision (i.e. hijacking; seizure of hostages; illegitimate disposal of firearms, ammunition, explosives or explosive materials). Apart from some exceptions, as in the case of seizure of hostages, they do not include a terrorist intent either. Thus, the Lithuanian system lacks a full catalogue of terrorist offences qualified as such as well as the subjective element.

Luxembourg adapted its criminal law to the Framework Decision through its Law of 12 August 2003 "Terrorism and Terrorist Financing". In particular, a new Article 135-1 was introduced in its Criminal Code in order to define what a "terrorist act" is. In fact, it literally reproduces the aim of a terrorist offence as set out in Article 1 of the Framework Decision and links it with any offence which is punishable by a maximum custodial sentence of at least three years under Luxembourgish law. The definition of the objective element limits itself to establishing this penalty requirement and no catalogue of terrorist offences seems to exist. In addition, the abovementioned law introduced a few specific provisions criminalising (i.e. making punishable) some of the forms of conduct covered by Article 1(1) (f) but did not include any link to the intentional element.

Malta has opted for a nearly literal transposition. Therefore, the provision introduced into its Criminal Code includes both the subjective and objective element, covering all types of conduct listed in the European instrument.

In order to implement the Framework Decision, the Netherlands adopted the "Terrorist Crimes Act"[7] on 24 June 2004. In particular, two provisions, Articles 83 and 83a, were inserted to comply with Article 1 of the Framework Decision. Article 83 sets out a limitative catalogue of terrorist offences covering all cases listed in Article 1(1) (a) to (h) of the said provision. Article 83a defines "terrorist intention", following very closely the wording of Article 1(1) of the Framework Decision.

Article 83 defines a terrorist crime by referring to three different categories, corresponding to three different paragraphs. The subdivision would allow the Framework Decision to fit into the existing Criminal Code. The first paragraph refers to the most serious crimes including a number of crimes for which a life sentence or custodial sentences of 20 years can be imposed (i.e. murder), crimes against the security of the State and crimes endangering the population. Otherwise, it must be noted that in this first paragraph there is an express requirement of terrorist intent. Paragraph 2 includes ordinary crimes in which the terrorist intent serves as a legal ground for increasing the penalty. Paragraph 3 covers crimes in which the terrorist intent is part of the definition of the crime itself.

Within this last category some nuances regarding the intentional element have been introduced in the listed relevant provisions: besides the terrorist intention of Article 83a, a number of these provisions refer to the intention of preparing for or facilitating a terrorist crime that will only be committed later. Moreover, in the case of Article 285 (threatening to commit a terrorist crime) no intentional element is required.

Poland has introduced Article 115(20) in its Criminal Code making terrorist offences punishable by a maximum custodial sentence of at least five years. This provision reproduces, almost word by word, the terrorist intent under Article 1(1). Nevertheless, it does not include the conduct that may constitute a terrorist offence or, in other words, the objective element. Instead, Poland refers to several provisions from different sections of its Criminal Code including offences against peace, humanity and war crimes; offences against defence capability; offences against life and health; offences against public safety; offences against safety in traffic; offences against liberty; offences against inviolability of the person; offences against public order; offences against protection of information, and offences against property. Unfortunately, there is neither a provision linking the behaviour described in these offences to the terrorist intent of Article 115(20) nor any defining them as terrorist offences.

Slovak legislation distinguishes between "terror" and "terrorism" offences. Section 93 deals with murder and hostage - taking with the intention of destroying the constitutional order of Slovakia, under the heading "terror". Thus, the scope of this provision is rather limited, both regarding the conduct described and subjective element. In particular, the latter seems to limit the provision to terrorist offences against Slovakia. Section 94 presents a considerably wider scope under the heading "terrorism". It retains the terrorist intent as defined in the Framework Decision. The objective element has been broadly defined so that "particularly serious offences (…), threatening life, people's health, their personal liberty or property" are included.

Slovenia provides for two definitions: one of national terrorism and one of international terrorism. In addition, it refers to a few provisions of its Criminal Code that punish some of the types of conduct listed under Article 1(1) without defining them as terrorist offences.

This double definition of terrorism brings the Slovenian system close to the Slovak one, with both notions containing a subjective and an objective element. In this case, both national and international terrorism are broadly described in general concepts. The abovementioned additional provisions detail some of the types of behaviour listed under Article 1(1). Nevertheless, they do not cover all the cases and some of them require the purpose of attacking the constitutional order of Slovenia, thus adopting a national approach that does not correspond to the Framework Decision. Furthermore, no provision links the behaviour described in these offences to the definitions of national and international terrorism or designates them as terrorist offences.

1.2. Assessment

In a first overview, it can be said that the legislation of the Czech Republic, Estonia, Greece, Hungary, Latvia, Malta, the Netherlands and Slovakia complies with Article 1 in the sense that these States have criminalised terrorist offences as a separate category of crimes. Cyprus is in the process of amending its legislation to that end. The defining techniques used in Lithuania, Luxembourg, Poland and Slovenia raise some concerns. For example, Luxembourg's definition of a terrorist offence includes all ordinary offences, as constituting a minimum penalty, when they are linked to a terrorist intent. The other three Member States identify "ordinary offences" under their criminal law as provisions transposing the Framework Decision in order to complement their partial or imprecise definitions of terrorism. In particular, Slovenia defines terrorist offences too generally, Lithuania lacks a full definition and Poland only defines terrorist intent. Furthermore, these three countries lack a provision either linking these ordinary offences to the definitions of terrorism or qualifying them as terrorist offences in case of terrorist intent. As stated in the first evaluation report with respect to Italy and the United Kingdom, although the Lithuanian, Luxembourg, Polish and Slovenian laws do not automatically mean that the results sought by the Framework Decision cannot be achieved, this form of implementation may disrupt the systematic and political aim of the Framework Decision and clarity of implementation, and can hinder the full implementation of related provisions (especially those on penalties and jurisdiction)[8].

It must be noted that Slovenia and Slovakia include two different definitions of terrorism: the first one with a national dimension and the second one with an international dimension. A system keeping two parallel notions of terrorism is alien to the Framework Decision and, once again, it may hinder its systematic and political aim as well as clear transposition.

The following paragraphs provide a more in-depth analysis of the different implementation techniques Member States have used, including an examination of whether they fully cover both the intentional and objective elements of Article 1.

Firstly, as regards the intentional element, most countries have followed the wording of the Framework Decision either literally (Hungary, Luxembourg, Malta and Slovakia in its "international definition") or very closely (the Czech Republic, Estonia, Greece, the Netherlands, and Poland). The wording in the Cypriot bill defining terrorist intent is also extremely close to that of the European instrument. It should be noted that, in the case of the Netherlands, some of the types of conduct including the objective element are linked either to the terrorist intent or to the intention to prepare for or facilitate a terrorist crime. This distinction is based on the idea that certain types of conduct listed in the Framework Decision, such as the possession of firearms would not be normally associated with terrorist intent but with the intention to prepare or facilitate a terrorist offence. In this regard, it must be pointed out that all types of behaviour listed under Article 1(1), including those related to weapons and explosives included under (f), constitute an independent terrorist offence when linked to the terrorist intention as described in the same provision. Thus, they do not need to be linked to another terrorist offence, not even as concerns the intentional element. In this sense, the aim of Article 1(1)(f) is to ensure that those who manufacture, possess, acquire, transport, supply, or use weapons, explosives or nuclear, biological or chemical weapons, as well as those who research and develop biological and chemical weapons with a terrorist intent as defined in the Framework Decision may be prosecuted, even if such actions are not directly linked to the commission of other specific offences.

The Latvian concept of terrorist offences, divided into two, includes two corresponding terrorist intentions. "harming the Republic of Latvia or its inhabitants" and "inducing the State, its institutions or international organisations to take some action or to refrain there from". This subjective element is quite problematic. Firstly, both descriptions of terrorist intention exclude the international dimension of terrorism provided for in the Framework Decision. Secondly, the wording "harming the Republic of Latvia or its inhabitants" appears to be non-specific, thus raising some concerns regarding legal certainty. And lastly, the two quoted purposes are linked to different types of conduct while, according to the Framework Decision, any of the purposes included in the terrorist intention qualify any of the types of conduct involving the objective element as a terrorist offence.

The Lithuanian definition of terrorism under Article 250 lacks a subjective element. Among other Articles mentioned as transposing provisions, only hostage - taking includes the subjective element and only partially. The lack of a terrorist intention constitutes an important problem in transposition of Article 1.

The Slovenian definitions of national and international terrorism do include a subjective element. Nevertheless, both definitions seem incomplete. Concerning "international terrorism" in particular, there are only two purposes: "inflicting damage on a foreign country or an international organisation" and "compelling a legal person, international organisation or a state to perform or to omit a certain act". In addition, these subjective elements are linked to separate conduct, which does not respect the definition system under Article 1(1).

Secondly, among those Member States that have specifically criminalised terrorist offences, different systems have been used to implement the objective element. Terrorist offences have been defined using various techniques. One of these consists of creating an exhaustive list covering specific types of conduct which may not have an equivalent in national legislation. Another possibility is to introduce references to corresponding provisions under criminal legislation. This latter technique consists of including all criminal offences punished by a certain minimum penalty. Some Member States applied several of these drafting techniques, resulting in mixed concepts of terrorism. Assessment of implementation entails verifying whether the acts referred to in Article 1 (a) to (i) contained in the described list of types of conduct or the specified national corresponding provisions. As the first evaluation report sets out, when it comes to Member States which lack a specific or complete definition of terrorist offences, it is the criminalisation of these acts as ordinary offences under national law that would have to be verified. And, it continues, no matter how these intentional acts might have been defined as offences under national law, they must be covered by the specific terrorist intent in order to count as terrorist offences[9].

The Czech Republic and Malta have fully retained the types of conduct listed in letters (a) to (i) following very closely the wording of the Framework Decision. Indeed, they have opted to describe all the criminalised conduct within a single provision that defines terrorism. It is therefore simple to assess their full implementation.

In the remainder of cases, assessment entails a complex comparison greatly affected by the quality and completeness of the information provided to the Commission. As was the case for the first evaluation report, unfortunately, not all Member States submitted exhaustive information, identifying all corresponding criminal provisions and providing the text of all identified provisions. As the first report sets out, the difficulty increases when it comes to the Member States which do not have a specific or complete definition of terrorist offences. Therefore, when some conduct or typical elements are not explicitly included in national provisions or it can only be assumed that such behaviour is included under a different wording or crime, the Commission cannot rule out that some conduct or elements referred to in the Framework Decision might not be covered[10].

For example, the Commission has doubts regarding the criminalisation of conduct such as "causing floods" or seizure of "other means of public or goods transport" under Latvian, Lithuanian, Luxembourg and Slovenian law. Similarly, the Commission is not certain that some types of conduct related to explosives (and specially research and development) are covered under Estonian, Greek, Hungarian, Latvian, Luxembourg, Polish and Slovenian law. In Estonia, it remains unclear whether "threatening personal security" includes kidnapping or hostage taking, and whether the other types of behaviour listed in the Framework Decision but not specifically mentioned in Estonian legislation could be covered by "offences of a generally dangerous nature". In Greece, it is doubtful that "damage dangerous to the public" includes interfering with or disrupting the supply of water, power or any other fundamental natural resource. In Hungary, it is uncertain whether "causing public danger" or "causing damage" covers the release of dangerous substances, or causing fires, floods or explosions. Nevertheless, it can be said that the relevant types of conduct have been largely covered by national legislation and transposition has certainly led to a general approximation of the definition of terrorist offences in the Member States evaluated for the first time.

Special reference must be made to the scope of the objective element in the case of Hungary, Luxembourg and Cyprus. Under the Hungarian Criminal Code, deliberately endangering of persons at work, violence against officials or robbery are qualified as terrorist offences, when linked to a terrorist intent as well as the seizure of significant material assets making their release dependant on a demand to the State or an international organisation. Under the Cypriot bill, the objective element includes the reference to criminal offences under national acts ratifying international conventions, such as the 1972 Convention for the Suppression of Unlawful Seizure of Aircraft, to the Firearms and Non-Firearms Act and to an annex containing a long list of offences under the Criminal Code. The extended list goes well beyond the enumeration of the Framework Decision, including i.e. publishing false news, usurpation of the right to wear a uniform or failing to prevent a crime. Under Luxembourg law, all criminal offences punished by a custodial sentence of more than three years are included. Although the behaviour falling within the definition of the objective element may appear to be too far removed from the essential concept set out in the Framework Decision, nothing prevents Member States from going beyond the minimum standards set up by this instrument, provided that the requirements regarding fundamental rights are respected. Moreover, as pointed out in the first report, when these additional offences are punished by custodial sentences of more than three years, as is the case for Luxembourg, the added value of the abolition of the dual criminality principle in mutual recognition instruments would be clearly reflected, as they would in principle lead to the execution of the request even if the concept of terrorism in the executing State were more restricted than in the issuing State[11].

1.3. Obligation to respect fundamental rights and fundamental legal principles under Article 1(2)

The second paragraph of Article 1 concerns the respect of fundamental rights and fundamental legal principles as enshrined in Article 6 TEU. The Framework Decision does not have the effect of altering this obligation, and thus also the Member States are bound by their international and Union obligations for respect of fundamental rights when taking implementing measures. In particular, the preamble of the Framework Decision refers to the right to strike, 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.

In that context, the Commission recalls that antiterrorist measures such as implementing legislation must be applied with full respect for fundamental rights and the principle of the rule of law. The firmer the guarantees that the EU and the Member States shall respect fundamental rights when implementing Union law, the better the Union's chances of making effective advances in the fight against terrorism. The Commission will continue to pay particular attention to this aspect.

2. ARTICLE 2 – OFFENCES RELATING TO A TERRORIST GROUP

As pointed out in the first evaluation report, this provision aims to ensure that directing a terrorist group and participating in its activities are themselves considered to be independent criminal facts and dealt with as terrorist offences[12]. It also provides for some examples of participation that must be interpreted as a minimum standard[13].

2.1. National systems

Cyprus will extensively implement Article 2 of the Framework Decision through Part II of the 2006 Terrorism and Related Matters Bill, in particular through its Sections 9 to 14, 16 and 17. These provisions are supplemented through the definition of a terrorist organisation and listed persons, groups or entities according to the Council Common Position 2001/931/CFSP and to the Regulation EC No. 2580/2001, under Part I of the same bill.

It must be noted that the definition of a terrorist organisation, very close to that of terrorist group under the Framework Decision, sets out the additional requirement of classification as such via a Ministerial Decree.

Section 9, which makes active involvement in a terrorist organisation or a listed group or entity punishable, makes a distinction between active involvement and active involvement with full knowledge of the unlawful objectives or activities of the terrorist group. The latter behaviour is punished by a more serious penalty. Article 17 criminalises leading or organising a terrorist group and holding an office or position in the group or carrying out relevant tasks.

Section 11 punishes support for a terrorist organisation and defines "support" very broadly - including not only providing certain services but also offering to provide them, as well as entering or residing in any State upon the request of a terrorist group. Sections 12 and 16 deal with specific types of support: offering to supply explosives or other lethal devices and terrorist financing, which are clearly contained in the examples provided for in the Framework Decision. Somewhat different is the case of Sections 13 and 14, which criminalise behaviour that we could describe as showing affinity or offering passive support for terrorism. They make punishable the wearing of external signs of membership or support and not reporting to the police relevant information for the pursuit of terrorists or in order to prevent a terrorist offence from being committed.

Section 95 was introduced into the Czech Criminal Code by Act No 537/2004[14]. It makes punishable the provision of financial, material or any other support for the commission of terrorist offences. This provision also refers to the commission of any terrorist offences by a member of an organised group as an aggravated offence. Membership would thus constitute an aggravating circumstance.

In addition, membership in a terrorist group would be punishable as participation in a criminal organisation, which is covered by Section 163a of the Criminal Code. It seems that when a criminal group does not have the structure required to qualify as a criminal organisation under the latter provision, Section 88(2) of the same instrument allows an individual to be charged simultaneously with a specific criminal offence and the offence of acting for the benefit of a criminal organisation provided certain requirements are met. Unfortunately, the relevant provisions were not submitted to the Commission.

In Estonia, the Criminal Code was modified in order to transpose Article 2 of the Framework Decision. Under the new Article 2371, belonging to a terrorist association, including creating, running or recruiting for such an association, is considered a criminal offence, although the provision does not include a definition of membership. In addition, Article 2372 criminalises the preparation of, and the call to perpetrate, terrorist offences, whereas Article 2373 concerns funding and supporting terrorist offences.

In Greece , the new Article 187A (4) to (6) introduced in the Criminal Code deals respectively with membership or creation of a terrorist group, leadership of a terrorist group, and provision of information, material means or funding to support a terrorist group. Paragraph (4) provides for a definition of terrorist group very close to that of the Framework Decision. The Greek implementation differs from the Framework Decision in two aspects: first of all, it specifically incriminates the creation of a terrorist group as a form of behaviour different from leadership. Secondly, it separates membership and material or economical support. This amounts to a clear and extensive transposition.

In Hungary, Article 261(9) (b) introduces a definition of "terrorist group" very close to that of the Framework Decision. Article 261 (5) of the same provision incriminates participation in the activities of a terrorist group widely: it introduces a detailed enumeration of acts related to the commission of offences described in paragraphs 1 and 2 within a terrorist group (calling for the commission, volunteering to commit, agreeing to commit, facilitating the commission, providing or assembling materials, undertaking the commission) and adds a general clause referring to supporting the activity of the group in any other way. This paragraph does not refer however, to the leadership of a terrorist group. It should be noted that offences related to a terrorist group are dealt with as "terrorist offences" under Article 261 of the Hungarian Criminal Code that, in this sense, goes beyond the requirements of the Framework Decision.

Latvia has transposed this provision through Section 88(2) and (3) of its Criminal Code, which criminalises the commission of terrorist offences through a group of persons who have previously concerted, as well as the leadership of a terrorist group. It must be noted that this provision does not criminalise participation in a terrorist group as such but the commission of terrorist offences through a group, thus linking the participation to the commission of specific offences. The inclusion of "supportive" behaviour which Article 2(2)(b) expressly mentions, such as supplying information or material resources, remains unclear - especially when such support is offered to the group or its activities generally, and not linked to a specific planned offence.

Otherwise, Section 21 of the Criminal Code, dealing with organised criminal groups in general, makes the formation and leadership of the group punishable as well as participation in the preparation of a serious crime irrespective of the role of the person in the jointly committed offence. The definition of organised group requires the purpose of "jointly committing criminal offences" and that "the responsibilities of participants have been allocated by prior agreement". This last requirement might be interpreted as opposed to the wording of the Framework Decision "that does not need to have formally defined roles for its members". Furthermore, the criminalisation of participation seems to be limited to the preparation of criminal offences so that it is not clear that the "supportive behaviour" of Article 2(2)(b) is covered by this provision either.

Terrorism financing is dealt with in a separate provision, i.e. Section 881 which covers direct and indirect procurement or provision of funding of any kind or other assets.

Lithuania introduced Article 250 (6) into its Criminal Code in order to transpose Article 2. It criminalises the establishment of and participation in a terrorist group aimed at committing the terrorist offences referred to in the same provision when committed with the terrorist purposes explicitly mentioned. It further specifies that this participation may consist of financing the group, providing material or other assistance.

In addition, Articles 25 and 249, generally applicable provisions which deal with complicity and criminal alliances respectively, have also to be considered. In fact, the former defines different forms of complicity (groups of accomplices, organised groups and criminal alliances) while the latter focuses on criminal alliances, criminalising participation as well as its supervision or organisation. According to Article 25 (4), terrorist groups must be deemed to be criminal alliances.

It must be noted that Article 250 (6) does not separately mention the person directing the group, which is the case under Article 2 (2) (a) of the Framework Decision. Nevertheless, Article 249 makes the organisation or the supervision of a criminal alliance explicitly punishable.

Articles 25 and 249 are important not only because of this. Article 25 (4) provides for a definition of criminal alliance[15] which is close to that of a terrorist group under the Framework Decision and allows Article 249 to address some hypothesis that are not covered by Article 250 (6). Indeed, the deficient technique used for to transpose of Article 1 of the Framework Decision affects transposition of Article 2: the incompleteness of the concept of terrorist offences under Article 250 results in an incomplete concept of what is a terrorist group. A terrorist group under this provision therefore only covers the terrorist offences mentioned in the same article. Terrorist groups aiming to commit offences not covered under Article 250 should then be covered by Article 249.

In Luxembourg , Articles 135-3, 135-4 and 135-5 were introduced by the Law of 12 August 2002 in order to transpose this provision. In particular, Article 135-3 adopted a definition of terrorist group which follows very closely the wording of the Framework Decision. Articles 135-4 and 135-5 transpose Article 2(2)(b) of the Framework Decision. Indeed, Article 135-4(1) punishes those that consciously and willingly participate actively in a terrorist group. Article 135-5 makes terrorist financing punishable. There is no explicit mention of "supplying information" or "material resources" although participation is described very broadly under 135-4 (1). Besides, two other forms of behaviour related to a terrorist group have been separately criminalised under Article 135-4(2) and (3) respectively: participating in the preparation or commission of an illicit activity by a terrorist group, and participation in the decision making of a terrorist group - in both cases knowing that it contributes to the purposes of such a group. Article 135-4(4) complies with Article 2(2)(a) since it specifically criminalises direction of a terrorist group.

Article 328B of the Maltese Criminal Code constitutes a specific transposing provision dealing with terrorist groups. Its wording is close to that of Article 2 and literally reproduces its definition of a terrorist group. Nevertheless, the Maltese provision retains various ways of participating in a terrorist group without making it punishable to participate in a terrorist group in general.

The Netherlands transposes Article 2 through a specific provision: 140a of its Criminal Code, which constitutes the "terrorist variant" of Article 140, dealing with criminal organisations in general. Article 140a criminalises participation in an organisation which has the intention of committing terrorist crimes under paragraph 1 and expressly imposes a heavier penalty for founders, leaders and directors of such organisations (under paragraph 2). This provision does not mention any of the examples of participation given by the Framework Decision nor does it give any detailed information on the content of participation. Nevertheless, the Netherlands points to the fact that Article 140a must be interpreted together with Article 140, from which it derives, and refers to the Supreme Court's statements interpreting Article 140 as applicable to Article 140a. This last provision clarifies that participation includes granting financial and other material support.

Poland introduced references to terrorism in Article 258 of its Criminal Code, a generally applicable provision dealing with organised groups or bands of criminals. Both participation in – Article 258(2) - and direction of – Article 258(4) - a terrorist group are covered. However, the provision does not contain a definition of terrorist group, however, nor for examples of participation in such a group.

Slovakia opted for introducing specific transposing provisions: Sections 89 (28) and 185a (2) of its Criminal Code. The first provision literally reproduces the definition of a terrorist group laid down in the Article 2(1) of the Framework Decision. The latter provision implements Article 2 (2) by making punishable the participation in as well as the setting - up and plotting of a terrorist group. Unlike the European instrument, it does not include examples of participation.

In addition, Slovakia provides for the definitions of organised group and criminal gang under Sections 89 (26) and (27) of the Criminal Code. The former could be understood as a broad category comprised of terrorist groups and criminal gangs, which constitute more detailed concepts.

Slovenia does not have a specific definition of a terrorist group but this notion is subsumed in the wider concept of "criminal association", under Article 126 of its Criminal Code. Although this concept does not include the requirements of "structure", and of "established over a period of time" under Article 2(1) of the Framework Decision, the term "association" seems to imply that a certain structure and durability must be present. More problematic is the condition of "[coming] together in order to commit criminal offences for which a prison sentence of over three years may be imposed". The analysis of the penalties attached to the provisions transposing Article 1 of the Framework Decision shows that both Slovenian provisions defining terrorism allow for custodial sentences of more than three years. However, this is not the case for Article 309 of its Criminal Code, which is mentioned by Slovenia as one of the ordinary offences transposing Article 1(1). Indeed, the Slovenian provision does not allow for a sentence of imprisonment of more than one or three years, depending on the circumstances of the case.

Concerning implementation of Article 2(2) of the Framework Decision, Article 297 of the Slovenian Criminal Code criminalises participation in the activities of a criminal association, irrespective of actual commission of the criminal offences. It does not detail which kind of behaviour is covered. Nonetheless, Article 388a[16] deals specifically with the funding of certain criminal offences which it enumerates, including both Slovenian articles defining terrorism, as well as some of the ordinary provisions transposing Article 1(1) of the Framework Decision. In addition, Article 297 introduces a general formula so that it applies to any violent act linked to a terrorist intention – for some points this is limited to a national scope. Therefore, it partially covers the rest of the provisions implementing Article 1(1) which are not included in the enumeration mentioned above.

2.2. Assessment

Estonia, Greece, Luxembourg, Malta, the Netherlands, Poland and Slovakia comply with Article 2 via specific provisions that separately criminalise acts committed in relation with terrorist groups. The Cypriot bill will also introduce concrete provisions to that end.

Hungary constitutes an especial case because it specifically criminalises participation in a terrorist group using a very wide formula but does not refer to the direction. Although it could be argued that directing a terrorist group is covered by the broad definition of participation (i.e. "in any other way supports the activity of a terrorist group"), Article 2(2) of the Framework Decision requires making the leadership of a terrorist group explicitly punishable: it clearly separates the two modalities with the open intention of qualifying direction as a more serious offence than participation.

Lithuania uses a mixed formula where general provisions on criminal alliances, explicitly applicable to terrorist groups, complement the limited scope of the provision that specifically transposes Article 2 – it thus fails to cover the direction of a terrorist group. In the Czech Republic, terrorist groups as such, and directing or participating in their activities are not specifically criminalised but support for commission of terrorist offences is. Latvia constitutes a special case as it criminalises the leadership of a terrorist group but participation in a terrorist group seems to be punishable only when linked to the commission of specific terrorist offences. However, both countries rely upon general provisions making participation in a criminal organisation or in organised groups punishable. Similarly, Slovenian law does not contain any specific provisions dealing with terrorist groups and this notion should be subsumed under the wider concept of "criminal association" or "criminal organisation".

In this sense, it is important to remember that the rationale behind Article 2 is to make provision for offences related to terrorist groups as independent criminal facts and, in particular, the aim of Article 2(2)(b) is to ensure that those who through their actions contribute to the development of a terrorist group may be prosecuted, even if such actions have no direct link with the commission of specific offences[17].

The fact that some Member States do not have either a specific concept of what is a terrorist group or separate criminalisation of participation and direction of a terrorist group, but instead rely on general rules on participation and direction of criminal associations or groups, constitutes a problem - in particular where there is no explicit link between such ordinary offences and the notion of terrorist groups or terrorism. This does not automatically means that the results aimed for by Article 2 of the Framework Decision cannot be achieved, but this lacuna may disrupt the systematic and political aim of this instrument and the clarity of implementation. It can also hinder the full implementation of related provisions (especially those on penalties and jurisdiction). Otherwise, in order to achieve the desired result, the ordinary offences referred to before should cover the scope of Article 2, and in particular comply with the definition of a terrorist group. In order to assess whether they do so, the accuracy and completeness of the information provided by Member States on these general provisions appears to be indispensable. The Commission cannot conclude that a general concept of criminal association or criminal group covers the concept of "terrorist group" unless the relevant national provisions are provided. As an example, the Commission has doubts whether the Czech legislation's use of the term "criminal associations" is a valid substitute for the existence of a specific criminalisation of participating in or directing a terrorist group.

Moreover, obstacles to full implementation identified in the first evaluation report result from the restriction of the scope of Article 2 under national legislation or its link to the commission of specific terrorist offences[18]. Restriction of the scope may derive from both a limited definition of terrorist group and a restriction in the criminalisation of participation or direction.

Concerning the definition of terrorist group, the Cypriot bill as well as the Latvian and Slovenian legislation need to be commented on. Cyprus restricts the scope of Article 2 by adding to a nearly literal reproduction of the concept of terrorist group under the Framework Decision the requirement that a group must be classified as a terrorist group via a Ministerial Decree. Such an additional requirement is not provided for in the Framework Decision. It sets out a system, which, on the one hand, has the merit of increasing legal certainty. On the other hand, it might prove to be too rigid to combat small and dynamic terrorist cells which are unknown until they perform a terrorist attack, possibly leading to the impunity of some acts of participation and even direction of a terrorist group. The Latvian and Slovenian concepts of respectively organised groups and criminal associations do not completely cover the notion of "terrorist groups". With regard to the Slovenian notion of "criminal associations" in particular, it is interesting to note that it is to a large extent the deficient technique used to define terrorist offences which embodies this incorrect transposition. If the offences related to weapons and explosives had been included in the concept of terrorist offences, the limit of a custodial sentence of more than three years would have been respected and the notion of "terrorist group" would be fully covered by that of "criminal association".

With respect to restrictions in the criminalisation of participation in or direction of, a terrorist group, it is necessary to comment on Maltese and Estonian law. As explained above, the legislation of these Member States does not refer to participation in general but enumerates several ways of participating in the activities of a terrorist group. Whilst it is true that the enumeration of types of behaviour by the Maltese provision seems broad enough, it cannot be ruled out that "atypical" ways of participation might not be covered. Similarly, Article 237-1 of the Estonian Criminal Code criminalises belonging to a terrorist group and additionally enumerates certain forms of behaviour related to a terrorist group. As regards the criminalisation of membership, the first evaluation report states that the drafting of Article 2(b) uses an extremely wide and open formula designed to cover not only membership in a terrorist organisation but also any other acts of assistance likely to contribute to the criminal activities of the group, even if such acts are undertaken by those who do not belong to or cannot be proven to be members of the organisation[19]. Therefore, it cannot be excluded that ways of participating in the activities of a terrorist group which do not constitute membership of such an organisation or correspond to creating or running a terrorist group or recruiting its members are possibly not covered.

Finally, concerning the obstacles resulting from linking the relevant provisions to the commission of specific terrorist offences, the Czech Republic, Latvia and Estonia should be singled out. Section 95 of the Czech Criminal Code does not criminalise support for a terrorist group in itself but as support for the commission of specific terrorist offences. Similarly, it is doubtful that under Latvian legislation participating in an organised group or criminal association covers the supportive forms of conduct which should be criminalised under Article 2(2)(b). The wording of the relevant Latvian provisions, Articles 88(2) and 21, does not criminalise participation in the activities of a terrorist group as such but when such activities are linked to the perpetration or preparation of a specific offence. The financing of terrorism is nevertheless covered in a separate provision. As regards Estonia, in addition to the criminalisation of belonging to a terrorist group, preparation of and incitement to commit terrorist offences are made punishable under Article 2372, as well as funding and supporting the commission of such offences under Article 2373. These separate provisions, however, are not explicitly connected to terrorist groups but linked to the commission of specific offences and this is the reason why they cannot offer a remedy to the deficiency identified above with respect to Article 2371. As explained in the first evaluation report, the Commission believes that this system does not fully comply with the Framework Decision as not only the rationale but also the logic of the instrument might be disrupted thereby leading to cases of impunity[20].

3. ARTICLE 3 – OFFENCES LINKED TO TERRORIST ACTIVITIES

Article 3 obliges the Member States to take the necessary measures to ensure that offences linked to terrorism include aggravated theft, extortion and drawing up false administrative documents with a view to committing certain terrorist offences[21]. For the purpose of assessing implementation of this Article, the first report provides some preliminary considerations regarding the content of the obligation and what implementation of this provision requires in practice. In particular, it states that the acts referred to above should be carried out with a view to committing terrorist acts - but they do not have to be considered to be terrorist acts themselves. There is therefore no explicit obligation to criminalise these offences separately. As regards implementation this implies that a link between these offences and terrorism needs to be established[22].

Greece and Malta have explicitly transposed Article 3 by introducing specific provisions. In particular, Article 178A (7) of the Greek Criminal Code explicitly refers to the existent offences of aggravated theft, robbery, counterfeiting concerning public documents and blackmail committed in order to prepare the terrorist offences defined in Article 1 of the Framework Decision. Article 328C of the Maltese Criminal Code links the intention of committing any of the offences set out in Articles 1 and 2 of the Framework Decision with the general provisions of the Criminal Code for aggravated theft, extortion and forgery.

The Netherlands has perfectly transposed Article 3 by adding some paragraphs to existing provisions of its Criminal Code dealing with aggravated theft, blackmail and forgery so that the said offences committed with the intention of preparing for or facilitating a terrorist offence are expressly covered.

The Cypriot bill goes beyond the obligation imposed by Article 3 by designating the relevant acts as terrorist offences. Indeed, these acts are explicitly criminalised under Part II of the bill, where the terrorist offences are included. In particular, Section 6 includes crimes against property, theft and extortion in particular, when linked to a terrorist intent. Section 11 refers to providing falsified official documents as a form of support for a terrorist group.

Hungary qualifies robbery as a terrorist offence when it is linked to a terrorist intent under Article 261 (9) (a) of its Criminal Code. Concerning this offence, Hungarian legislation goes therefore beyond the requirement of the Framework Decision. However, there is no mention of extortion or drawing up false administrative documents.

Luxembourg has not adopted a specific provision to transpose Article 3 although the relevant conduct might be covered by the definition of terrorist acts of Article 135-1 if they are punishable by a minimum sentence of at least three years of prison. If this is the case, Luxembourg would in fact go beyond the obligation of Article 3 by defining the relevant acts as terrorist offences. Unfortunately the Commission did not receive the relevant information on the treatment of aggravated theft, extortion and forgery under Luxembourgish legislation.

Slovakia has not adopted legislation to transpose of this provision. It refers to existing provisions of its Criminal Code - Sections 247, 235 and 176- dealing with aggravated theft, extortion and drawing up false administrative documents. None of the three Sections refers to terrorism although they specifically punish those who commit the relevant offences as members of an organised group or when collaborating with it. Accepting the validity of this indirect link to the notion of terrorism implies, as a preliminary requirement, that the concept of terrorist group is subsumed in that of an organised crime group under Slovak law. Similarly, Slovenia has not established any link between the notion of terrorism and ordinary offences criminalising aggravated theft, extortion and drawing up false administrative documents under its Criminal Code. Yet, concerning the hypothesis of aggravated theft in particular, Slovenia points out that, if the theft is committed with the purpose of providing money or property to finance the commission of terrorist offences, the behaviour would be covered by Article 388a of its Criminal Code, which deals with financing of terrorist activities. Therefore, Article 388a would at the same time implement Articles 2 and 3.

Poland and Lithuania have not established any link between the notion of terrorism and ordinary offences criminalising aggravated theft, extortion and drawing up false administrative documents under their Criminal Code. However, they make reference to the provisions covering all or some of these offences.

The Czech Republic and Latvia have not even provided for relevant general provisions under their criminal law. The former states that the offences to which Article 3 refers have already been properly incorporated in Czech law. Actually, although most likely these forms of conduct are criminalised as ordinary offences under the legislation of all Member States, the Commission cannot conclude that this article has been implemented unless the relevant national provisions are provided. Moreover, this reasoning also applies to Member States that forwarded general provisions criminalising the conduct in question as ordinary offences but did not link them to the concept of terrorism: the mere existence of such offences under national criminal law does not amount to full compliance with Article 3.

In conclusion, the Commission can only assess the full compliance of Dutch, Greek and Maltese legislation as well as the Cypriot bill that goes beyond the requirements of the Framework Decision, classifying the forms of conduct referred to in Article 3 as terrorist offences. Hungary has also gone beyond the Framework Decision's requirements as regards aggravated theft, since it is qualified as a terrorist offence. However, it has not implemented Article 3 concerning extortion and drawing up false administrative documents. Luxembourg legislation might also have included the relevant behaviour in its broad concept of terrorist offence although the lack of information prevents the Commission from assessing its implementation. As for the rest of the Member States that provided information to the Commission (and Hungary with regard to extortion and drawing upo of false administrative documents), quoting the first evaluation report, they will be able to comply partially with Article 3, achieving, in some cases, similar results by treating these offences as acts of collaboration with a terrorist group or as participation in specific terrorist offences[23].

4. ARTICLE 4 – INCITING, AIDING OR ABETTING, AND ATTEMPTING [24]

4.1. National Systems

The Czech Republic's Criminal Code contains general provisions which make attempting and participating in a criminal offence punishable. Participation covers the organisation of a criminal offence, as well as incitement or aiding and abetting (Section 10). It must be noted that preparation is a separate notion from attempt, punishable under Section 7 of the same instrument. Actually, it is considered as an earlier stage of an attempt and only punishable in the case of particularly serious offences. Complicity appears as a criminal behaviour which involves closer linkage with the acts of the main perpetrators, punished under Section 9.

In addition, the Czech Republic refers to Section 163a of its Criminal Code, dealing with participation in a criminal organisation, including supporting such an organisation, and Section 164, criminalising incitement. Finally, Section 95, specifically dealing with terrorism, explicitly criminalises financial, material and any other support for the commission of terrorist offences.

Cypriot draft legislative bill Section 6(1) designates as terrorist offences those offences included in the list of offences of the Criminal Code annexed to the said bill when they are linked to a terrorist intention. The list contains, among others, "attempted criminal offences", "failing to prevent a crime", "incitement to commit a crime" and "conspiracy to commit a crime". Unfortunately, Cyprus has not forwarded the text of the relevant provisions providing for criminal liability in such cases. In addition, Section 18 of the legislative bill explicitly criminalises incitement or attempt to incite when the offence is partly or entirely committed outside Cyprus laying down penalty of imprisonment for a period of up to seven years.

In addition, it is interesting to note that, under the same Section 6, the possession of documents with seditious content and publication of propaganda material of an unlawful organisation also counts as a terrorist offence.

In Estonia, generally applicable provisions of its Criminal Code already provide for criminal liability of instigation and assistance (Article 22) as well as attempt (Article 25). Furthermore, the newly included Articles 2372 and 2373 of the Criminal Code criminalise the preparation of, and the call to perpetrate, terrorist offences as well as funding and supporting terrorist offences in any way.

Greece refers to general provisions of its Criminal Code (Articles 42, 46 and 47) as well as to Article 187A. Paragraph 3 of this last provision, deals with the threat to commit terrorist offences and specifies that the attempt of such threat is not punishable. Article 46, dealing with instigation, has been provided, but not the text of Articles 42 and 47.

In Hungary, generally applicable provisions make the commission of an offence as well as its attempt punishable. The Hungarian Criminal Code distinguishes between the perpetrator and the accomplices (Article 20) and instigators and accessories (Article 21). In addition to these provisions, concerning terrorist offences, Article 261 (4) makes the preparation of a terrorist offence punishable and (6) explicitly criminalises the behaviour of those who have information on a terrorist offence about to be committed and fail to report it to the authorities.

Luxembourg did not provide information on any general provision dealing with attempt, incitement, aiding or abetting nor any specific regulation of these issues in the terrorism field.

The Netherlands implements Article 4 of the Framework Decision through Articles 45, 46a, 47 and 48 of its Criminal Code, which make inciting, aiding and abetting and attempting the commission of a criminal offence in general punishable. It must be noted that those who incite are punished as perpetrators and those who aid and abet fall under the notion of accessories (to the crime) and are punished as such. The concept of attempt (under Article 45) is different from that of preparation (Article 46), which is not always punishable. Additionally, Article 46a punishes expressly and separately the attempt to induce a person to commit an offence.

Poland refers to general provisions of its Criminal Code on attempt, incitement and aiding and abetting, in particular Articles 13 to 15 and 18. Under Polish criminal law, preparation is a separate concept from attempt.

The Slovak system makes a basic distinction between attempting and committing a crime (Section 8), considering incitement, aiding or abetting and plotting or organising as forms of participation in the commission of a crime (Section 10). Furthermore, it expressly refers to public incitement as a crime punishable by deprivation of liberty of up to two years or a pecuniary penalty (Section 164).

Similarly to the Slovak system, the Latvian Criminal Code contains general provisions that distinguish between the perpetrator or main author of the crime, joint perpetrators and the joint participants (Section 19). According to Section 20 of the same instrument, instigators, abetters and accessories are considered as joint participants, as well as the additional category of organisers. As regards "attempt", Section 15 of the Criminal Code defines it, together with the preparation of a crime, as an uncompleted criminal offence setting out liability for both in accordance with the liability laid down for the specific offence attempted or prepared.

Lithuania also refers to general provisions on complicity and "attempt" in its Criminal Code. Complicity is defined as an intentional common participation, including as accomplices the executor, the organiser, the abettor and the aide, who are liable according to the rules governing liability for the act committed by the executor (Article 24). It details that the accomplices shall be liable only for the criminal acts committed by the executor which were covered by their intention (Article 26). The liability for attempt is set out under Article 22. It must be noted that, apart from these provisions, there is a particular provision, Article 250, dealing with incitement via public statements or via the media to commit terrorist offences. In this case, liability is explicitly laid down for legal persons.

Through a specific clause, the Maltese Criminal Code makes a crime of inciting, aiding or abetting terrorist offences, offences related to terrorist groups and terrorist-linked offences. It is worth noting that these forms of behaviour are punished by the same punishment as determined for the offence incited, aided or abetted. Regarding "attempt", a general provision of the Criminal Code makes it punishable "save as otherwise expressly provided" (Article 41).

Slovenian transposing provisions are contained in Articles 22 to 29 of its Criminal Code. Slovenian law refers to "criminal attempt" as well as "participation in a criminal offence". In particular, Slovenian "participation" covers complicity, solicitation and criminal support, including a broad and detailed definition of the latter.

4.2. Assessment

As stated in the first evaluation report, following a systematic approach, after defining and providing for the criminalisation of terrorist offences, offences related to a terrorist group and offences linked to terrorist activities, the Framework Decision requires Member States to ensure that inciting, aiding or abetting and attempting to commit these offences is also punishable[25].

Most Member States (Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, the Netherlands and Slovenia) have referred to general rules on participation and inchoate offences under their criminal systems. These general rules would also be applicable to terrorist offences. Some Member States have, additionally, specific provisions in relation to terrorism (the Czech Republic, Estonia, Hungary, Lithuania and Malta) or are modifying their legislation so that the general rules on complicity and inchoate offences will be linked to terrorist intention and qualified as terrorist offences (Cyprus). Greece has referred to a specific implementing rule that excludes making the attempt of threatening to commit a terrorist offence punishable. This exclusion is compatible with Article 4 of the Framework Decision. Luxembourg has referred neither to specific transposing provisions nor to generally applicable ones on participation and inchoate offences, although this report assumes the existence of the latter.

In conclusion, even if only some Member States have specific provisions on the matter, it appears that by applying national provisions on participation and inchoate offences to terrorist offences, offences related to a terrorist group and offences linked to terrorist activities, it is possible to meet the requirements of Article 4. As such provisions naturally exist in all Member States, the full implementation of this provision mainly depends on correct implementation of the preceding articles. This being said, some difficulties concerning the rules on participation and inchoate offences themselves do exist.

The first evaluation report noted the lack of a legal definition of "incitement" in the Framework Decision as well as the lack of a convergent concept of incitement in national legislation[26]. In this second evaluation, this difficulty can be confirmed and stressed. Indeed, these difficulties do not only concern "incitement" but also "aiding and abetting". Important divergences have been noted under the different legal systems assessed. For example, in some countries complicity seems to require a closer relation to the main criminal acts than participation (Czech Republic) while other systems do not seem to make a difference between complicity and participation (Lithuania). Concerning the categories included in the notion of participation, Latvia, Lithuania and Slovakia refer to an additional category, the organiser, which does not appear under the Framework Decision. In addition, it is only in Malta and Poland that participation does not cover incitement, which appears as a separate notion. In the rest of the new Member States evaluated, inciting a person to commit an offence constitutes a form of participation or complicity. Finally, some of the countries present a category that could be described as public incitement (Lithuania and Slovakia) and some systems even criminalise the spreading of propaganda (Cyprus). The existence of different legal categories which do not always fully coincide with those of the Framework Decision, together with the use of different terminology, makes it difficult to accurately assess compliance. It should, however, be noted that different terminology might actually derive from translation difficulties. In this sense, it is important to consider that, first of all, there might be divergences between the meanings of the terms used in the different official versions of the Framework Decision and secondly, the Commission works mainly with translated versions of national provisions.

The concept of "attempt", on the contrary, seems to appear in all legal systems. There is nevertheless a difference to be noted. Some Member States also criminalise the preparation of an offence which constitutes an earlier stage than the attempt (the Czech Republic, Estonia, Hungary, Latvia, the Netherlands and Poland). However, these States only make preparation of an offence punishable in limited cases with the exception of Latvia, where it seems to be generally punishable. The Netherlands spells out the criminalisation subjecting it to the existence of two requirements: that the offence prepared is punished by a sentence of eight years' imprisonment or more and that one of the specific forms of preparatory behaviour listed in the relevant provision has been carried out.

Obstacles to full implementation may derive from the limits that some Member States lay down concerning the liability for inciting, abetting or attempting criminal offences. In particular, in Slovenia the criminal liability for attempt is linked to the requirement that the offence attempted or solicited may be punished by a sentence of at least three years' imprisonment (Article 22). This might cause a problem because two transposing provisions of Articles 1 and 3 of the Framework Decision respectively provide for minimum sentences of less than three years in prison (Articles 309 and 211). It must be said that any likely impunity is limited to very specific cases and appears rather as an academic hypothesis than as a real difficulty.

Lastly, it is important to note that Latvia explicitly solves the question of the liability of inciters, abettors or aides when the executor has not even attempted to commit the criminal offence: the participants would be liable for the preparation of the relevant offence. On a separate note, the Dutch legislation and the Cypriot bill criminalise the attempt to incite perpetration of an offence.

5. ARTICLE 5 - PENALTIES

We will separately analyse the compliance of national legislation with each of the paragraphs of this Article, which constitutes a key provision of the Framework Decision[27].

5.1. National Systems

5.1.1. Article 5(1)

As stated in the first evaluation report, paragraph 1 mainly implies that terrorist offences should in all cases be punished by imprisonment of at least one year[28]. Although only the Cypriot bill refers explicitly to extradition for terrorist offences (in particular, Section 32 provides for the possibility of extradition and surrender), this minimum appears to be largely met in national provisions. Transposition of Estonia, Greece, Hungary, Luxembourg and Malta deserves a special mention since they go beyond the required custodial sentence of one year by introducing a general requirement of a custodial sentence of at least three years (Greece and Luxembourg) five (Estonia and Malta) or even ten (Hungary, except for threatening to commit a terrorist offence, for which a minimum of two years has been foreseen). This has the added value of abolishing the dual criminality principle for extradition, as it would in principle lead to the execution of the request even if the concept of terrorism in the executing State were more restricted than in Luxembourg, Estonia or Malta.

The appreciation as to whether or not the criminal penalties which can be imposed in Member States are sufficiently effective and dissuasive can be answered in the affirmative, since, as explained below, most Member States have provided for severe maximum penalties (including life sentence). In some cases, however, pecuniary sanctions, sentencing to community services, or limitation of liberty appear as alternative penalties. As the first evaluation report states, there might be some doubts as to whether, if applied, these would be sufficiently dissuasive but on the other hand this might be justified by the fact that penalties should also be proportionate[29].

5.1.2. Article 5(2)

The first evaluation report points to two general questions regarding transposition of Article 5(2). First of all, correct implementation of Articles 1(1) and 4 is necessary to fully comply with this provision. Secondly, the drafting of Article 5(2) assumes that the corresponding offences actually exist in national legislation. In this sense, the formula used in Article 5(2) might not always be comprehensive enough, as it would not apply to terrorist acts for which, in national legislation, there is not an equivalent offence without a terrorist intent. Indeed, in such cases, there would be no real terms of comparison[30].

Concerning the forms of behaviour referred to in Article 4, generally Member States do not stipulate separate penalties for such offences. Instead, they rely on the sanction attached to the incited, aided, abetted or attempted offences, since more severe penalties for terrorist acts under Article 1(1) automatically leads to more severe penalties for the behaviour contained in Article 4. The assessment of whether Member States comply or not with this paragraph in relation to the offences included in Article 1(1) is also applicable to the offences referred to in Article 4.

This being said, certain legal systems lay down separate penalties for incitement. For example, under the newly amended Cypriot law, Section 18 makes incitement or attempt of incitement to commit a terrorist offence punishable by a custodial sentence of up to seven years. Cyprus has not identified an equivalent ordinary offence and therefore the respective penalties cannot be compared. However, making the attempt of incitement punishable reveals an especially severe treatment. Another example is Section 164 of Slovakia's Code which stipulates a custodial sentence of up to two years or a pecuniary penalty for public incitement to commit an offence or breach public order. Unlike the Cypriot provision, that Section is generally applicable and, in this sense, incitement to commit a terrorist offence in particular does not result in an aggravated penalty as required under Article 5 (2).

Few Member States have explicitly transposed Article 5(2) through specific provisions aggravating the penalties laid down for ordinary offences when they are designated as terrorist acts.

The Netherlands provides for specific implementation since it links the definition of terrorism to several aggravating provisions in the Criminal Code and in other Acts: thus, the penalty of ordinary offences is increased when they have been committed with a terrorist intent. In addition, Article 10(3) of the Dutch Penal Code explicitly allows for the possibility of imposing the maximum custodial sentence of 20 consecutive years or a life sentence for terrorist crimes. In the case of Greece, Article 187A (1) of the Criminal Code explicitly foresees the up-grading of the "imprisonment" to imprisonment of at least three years and of "temporary imprisonment" to imprisonment of at least ten years. In Poland , Article 65 of the Criminal Code provides for an aggravated penalty when the offence is committed by "offenders who commit terrorist crimes". Similarly, Section 22 of the Cypriot draft bill provides for the possibility of more serious penalties for conduct under Article 1(1) of the same instrument, unless a life sentence is already laid down.

Luxembourg constitutes a special case, where the combination of two provisions, Articles 135-1 and 135-2, has a similar effect to that of an aggravating clause. The first provision defines terrorism by including any offence punishable by a maximum custodial sentence of at least three years when committed with a terrorist intent. The second provides for a custodial sentence of fifteen to twenty years for terrorist acts in general and a life sentence for those involving the death of one or more persons. Therefore, unless the ordinary offence is already punished by a custodial sentence of from fifteen to twenty years, Article 135-2 will function as an aggravating clause. Otherwise, life sentence certainly constitutes "the maximum possible sentences under national law" to which Article 5(2) refers. Therefore, in the cases where it applies, Luxembourgish law undoubtedly complies with this provision.

Similarly to Luxembourg, Estonia, Hungary and Malta have introduced rules which allow for the imposition of life sentences. Unlike the Luxembourgish provision, these articles are not limited to certain terrorist offences but in principle could apply to all of them. We can thus conclude that the three Member States fully comply with Article 5(2).

The Czech Republic, Latvia, Lithuania, Slovakia and Slovenia have not introduced specific aggravating provisions to implement Article 5(2) nor have they identified equivalent ordinary offences which would allow comparison of sanctions and therefore the assessment of implementation. This being said, in many cases there might not be an equivalent ordinary offence for the defined terrorist act, which would then constitute a self-standing offence to which Article 5(2) would not be applicable.

It must be noted that, although Lithuania does not identify the equivalent offences, it states that the offences contained in Article 249 to 252 are punishable by penalties more severe than the ones for the analogous acts provided for in other chapters. Nevertheless, Articles 249 to 252 only represent part of the provisions transposing Article 1(1). In fact, the rest of the forms of behaviour under Article 1(1) have not been specifically criminalised by Lithuanian law as terrorist acts but are still treated as ordinary offences under national legislation. Latvia and Slovenia are in a similar situation, not having classified as terrorist offences some of the forms of conduct included in Article 1(1). The first evaluation report referred to this problem pointing out that, in this case, unless an aggravating rule is provided, the terms of Article 5(2) cannot be met[31]. Lithuania refers to Article 54(2) of the Criminal Code as including this aggravation rule. The provision indicates that, when imposing a penalty, the court must take into consideration the motives and purposes of the act committed. Terrorist purposes would therefore increase the penalty.

5.1.3. Article 5(3)

As a preliminary remark, we must note, as the first evaluation report did, that full implementation of Article 5(3) implies correct implementation of Article 2. This being said, Member States have mainly respected the maximum penalties set out in this provision which, generally speaking, has been explicitly transposed into national legislation.

The different relevant provisions of the Cypriot bill, analysed when dealing with Article 2 of the Framework Decision, respect the limits of imprisonment for both membership and direction of a terrorist group.

Luxembourg's legislation is extremely detailed in this subject. Article 135-4 stipulates custodial sentences of from one to eight years for both active membership –Article 135-4(1)- and participation in the preparation or commission of legal activities carried out by the terrorist group –Article 135-4(2)- , from five to ten years for participating in the decision making of a terrorist group –Article 135-4(3) and from ten to fifteen years for directing a terrorist group –Article 135-4(4). The participation in the decision making of a terrorist group therefore respects the limits set out under Article 5(3) considering that this contains the concept of participation. Article 135-5 deals separately with terrorist financing but does not provide for the corresponding penalty. Instead, Article 135-6 refers to Articles 135-1 to 135-4 in this respect.

In the Netherlands , Article 140a of the Criminal Code goes further than the thresholds set out in Article 5(3) - with maximum sentences of fifteen and twenty years for membership and direction of a terrorist group respectively.

It must be noted that the three Member States mentioned above introduce the possibility of a pecuniary sanction as an alternative to a custodial sentence. Nevertheless, such a possibility is not provided for in Article 5(3). The preceeding comments on alternative sanctions to custodial sentences in order to implement Article 5(1) apply here.

Under Section 95 of the Czech Criminal Code, participating in a terrorist group or directing it is not criminalised as such. Providing financial, material or any other kind of support for the commission of a terrorist offence is nevertheless punishable by a custodial sentence of from five to fifteen years. Additionally, if the perpetrator of a terrorist offence acts as a member of an organised group the punishment will be more severe.

The Estonian provisions implementing Article 2 of the Framework Decision set out a maximum penalty of life imprisonment – for those belonging to a terrorist group, including creating, running and recruiting for such a group - or ten years – for those funding or supporting terrorist offences, including the offence of belonging to a terrorist group, and - therefore comply with the Framework Decision for both directing a terrorist group and participating in its activities.

In Hungary, Article 261 (5) foresees custodial sentences of from five to ten years for participation in a terrorist group. The direction of a terrorist group is not separately incriminated and therefore, there is no specific penalty foreseen in this respect.

Sections 88(2) and (3) of the Latvian Criminal Code establish custodial sentences from ten to twenty years and from fifteen to twenty years for participation in and direction of a terrorist group respectively. Also, Section 881 lays down custodial sentences of from eight to twenty or fifteen to twenty years for terrorism financing.

In the case of Lithuania, two different implementing provisions must be considered: Article 250(6) applies to the terrorist offences included in the same provision and Article 249 to the rest of them. Although Article 250(6) does not establish a specific penalty for directing a terrorist group, the thresholds set out by the Framework Decision are perfectly respected as it sets out - for both participation in and direction of a terrorist group - custodial sentences of from ten to twenty years. Article 249 establishes an aggravated penalty for the organiser of a criminal alliance - a custodial sentence of from six to twenty years for participation in and from ten to twenty years for direction of such an alliance.

In Malta, Article 328B(3) of the Criminal Code stipulates custodial sentences of up to thirty years for direction of a terrorist group. However, with respect to the conduct referred to in Article 1(1)(i) of the Framework Decision, eight years is the maximum - the same maximum penalty as provided for in the case of participation.

Participation in a terrorist group is punished by imprisonment from six months to eight years under Article 258 of the Polish Criminal Code. Nevertheless, for those leading or setting up the terrorist group it only fixes a minimum sentence of three years of imprisonment - it does not include the maximum limit of at least fifteen years set out in the Framework Decision. Similarly, in Greece, members and supporters of terrorist group are punished with imprisonment of up to ten years, therefore respecting the limits of Article 5(2) of the Framework Decision. However, Greek legislation does not specify the maximum penalty for the leader of a terrorist group. It only foresees a minimum custodial sentence of ten years, which does not guarantee compliance with the maximum of at least fifteen years foreseen under the Framework Decision.

Slovakia has a custodial sentence of from five to fifteen years for both direction of and participation in a terrorist group under Article 185a(2).

In Slovenia, Article 297(2) of the Criminal Code, setting out custodial sentences of from three months to five years for participation in criminal associations and from six months to eight years for their direction, does not meet the thresholds of Article 5(3). The exception here concerns the direction of a terrorist group which only threatens to commit terrorist offences – in this case, the maximum penalty of not less than eight years as specified in Article 5 (3) of the Framework Decision is respected. On terrorism financing, Article 388a sets out custodial sentences of from one to ten years for those financing the commission of terrorist offences - and of at least three years - when those financing the terrorist offences act within a criminal association. Therefore, it seems that funding the activities of a terrorist group, as referred to under Article 2, would be punished by custodial sentences of from three to ten years.

In conclusion, with the exception of the obstacles to correct implementation stemming from incorrect transposition of Article 2 - which in case of the Czech Republic and Hungary are especially serious - there are no particular problems to be noted with implementation of Article 5(3). With regard to participation in a terrorist group, all Member States but Slovenia comply with the provision. Concerning the direction of a terrorist group, most Member States have also correctly implemented the Framework Decision. Only implementation in four Member States raises concerns: Greece, Hungary, Slovenia and Poland. Hungary and Slovenia have not correctly transposed Article 5(3) while Greek and Polish implementation is doubtful, since they have chosen a formula that does not exclude the imposition of a custodial sentence of up to fifteen years but does not guarantee it either.

6. ARTICLE 6: PARTICULAR CIRCUMSTANCES

As stated in the first evaluation report[32], this Article follows the Council’s resolution of 20 December 1996 on individuals who cooperate with the judicial process in the fight against international organised crime[33], allowing Member States to introduce certain mitigating circumstances to reduce the penalty imposed on terrorists[34].

6.1. National Systems

Of all Member States evaluated, only Cyprus, Greece, Hungary and Luxembourg provide for a specific transposing provision in their draft or legislative Bill. Slovakia makes provision for specific mitigating circumstances linked to cooperation by the offender in fighting organised groups, criminal gangs or terrorist groups, and Slovenia provides for specific mitigating circumstances for the members of criminal associations, which, as explained above, partially covers the concept of terrorist groups as laid down in the Framework Decision.

The Cypriot draft legislative bill reproduces in its Section 23(1) almost verbatim the text of Article 6 of the Framework Decision. However, the renouncement of terrorist activity appears not as a cumulative but as an alternative requirement. Besides, it adds to the list of mitigating circumstances the provision of information which helps to "dismantle a terrorist organisation or listed group or entity", which nevertheless can be interpreted as a specification of Article 6 (b)(iv), whereas it does not adopt the mitigating circumstance (b) (iii) of finding evidence. Furthermore, paragraph 2 introduces the possibility of suspending prosecution of a person who assists the police, a possibility that is not mentioned in the Framework Decision.

Article 187B of the Greek Criminal Code refers to providing law enforcement authorities with information that allows to prevent the commission of offences under preparation or to dismantle a terrorist group. Such cooperation excludes the punishment when the individual has not yet committed a terrorist offence and constitutes a mitigating circumstance when he has already perpetrated such offence. These circumstances correspond to the mitigating circumstances of Article 6(b) (i) and (ii) of the Framework Decision. The Greek legislation does not refer explicitly to the requirement of renouncing terrorist activity foreseen under Article 6(a) of the Framework Decision. However, it can be understood as implied in the cooperation with law enforcement authorities envisaged in Article 187B referred to above.

The Hungarian Criminal Code implements Article 6 of the Framework Decision through Article 261 (3) which allows for the reduction of the penalty if the person desists from the terrorist offence before it gives rise to any serious consequences or reveals his activity to the authorities. The first circumstance can be interpreted as "renouncing to terrorist activity" under Article 6(a) of the Framework Decision. The second one can be interpreted as providing administrative or judicial authorities with information under Article 6(b).

In Luxembourg , Article 135-7, of the Criminal Code has introduced the possibility of reducing the penalty for terrorist crimes, should the offender, after the beginning of inquiries, inform the authorities about the names of new suspects. This provision corresponds to Article 6(b)(ii) of the Framework Decision. Article 135-7 allows exemption from punishment if the offender - before any attempt or inquiry has taken place - informs the authorities of the existence of acts intended to prepare terrorist crimes or of the identity of persons having committed these acts. Article 135-8 provides for exemption from punishment for participation in a terrorist group for those who - before any attempt of a terrorist acts or inquiry has taken place - inform the authorities of the existence of this group and the names of their ringleaders or their subordinates.

Slovakia's Criminal Code envisages the possibility of reducing the penalty of the offender in Section 33(j) if he contributes to the detection or conviction of an organised group, criminal gang or terrorist group. Sections 40(3) and 40(4) allow the reduction of a custodial sentence to below the minimum if the offender "contributed significantly to the solving of a criminal offence committed by a criminal gang or terrorist group" or "helped prevent the commission of a criminal offence that another group was preparing or attempting to commit for a terrorist group" or if he has, "to an especially significant extent, contributed to the unravelling of an offence of […] setting up, plotting and supporting a criminal gang or terrorist group or a particularly serious intentional criminal offence committed by an organised group, criminal gang or terrorist group or to the detection and conviction of the offender of such an offence by providing evidence of the offence in the criminal proceedings". These mitigating circumstances correspond to the ones listed in Article 6(b) (i), (ii) and (iii). Nevertheless, there are two important differences: firstly under Sections 33(j) and 40(3) and (4) of the Slovak Criminal Code, the said mitigating circumstances are applicable to the offender of any crime and not only to the author of the offences included in Articles 1 to 4 of the Framework Decision. Secondly, they are always linked to collaboration against the activity of a terrorist group and not to the offences listed in Articles 1 to 4 of the Framework Decision irrespective of the number of persons involved in committing them.

Slovenia refers to Articles 297(3) and 42(3) of its Criminal Code as implementing provisions. Article 297 deals with participation in setting up and managing criminal associations; its paragraph 3, together with Article 42(3), allows for mitigation of the penalty if the offender "prevents further commission of the offences or uncovers information which has a bearing on the investigation and production of evidence for criminal offences that have already been committed". This criterion corresponds to Article 6(b)(iii) and (iv) of the Framework Decision. Article 42 (1) and (2) provide for general mitigating circumstances. Paragraph 2, in particular, allows the court to "ascertain that special mitigating circumstances are present".

Five Member States have not provided particular provisions implementing this optional Article 6, but have referred to existing general rules concerning mitigating circumstances, which four of them have forwarded. Some of these circumstances are comparable to those included in the Framework Decision although they rarely respect the cumulative structure of Article 6 including the renouncement of criminal activity referred to in paragraph (a) plus the provision of information to administrative or judicial authorities in paragraph (b).

Article 57 of the Estonian Criminal Code for example contains the possibility of reducing the penalty, should the offender "prevent the harmful consequences of the offence, and provide assistance to the victim immediately after the commission of the offence" which is similar to the criterion under Article 6(b)(i). The Estonian provision also provides for "appearance for voluntary confession, sincere remorse, or active assistance in detection of the offence" as a mitigating circumstance. Remorse and confession may be interpreted as equivalent to renouncing terrorist activity as stipulates under Article 6(a) of the Framework Decision. Active assistance in detection of the offence constitutes a wide wording that may cover 6(b)(ii) and (iii). Additionally, Article 205 of the Code of Criminal Procedure allows for "termination of criminal proceedings in connection with assistance received from a person upon ascertaining facts relating to a subject of proof", unless the offence imposes a minimum sentence of six year's imprisonment or lays down life imprisonment as the most severe punishment. The offences within the definition of terrorism of Article 237 of the Criminal Code do not meet such a requirement and, therefore, criminal proceedings against terrorists might be terminated according to the Code of Criminal Procedure under those circumstances.

Section 47(1) of the Latvian Criminal Code enumerates ten different mitigating circumstances. Some of them are comparable to those included in the Framework Decision. Thus, No 1 allows for mitigation if "the offender has admitted his guilt, has freely confessed and has regretted his actions" which may be interpreted as equivalent to renouncing terrorist activity under 6(a). No 2 provides for it if the offender "actively furthered the disclosure and investigation of the offence"; this wide wording may cover the circumstances under 6(b) (ii) and (iii). No 3 applies if "the offender has facilitated the disclosure of the crime of another person", is similar to the circumstance under Article 6(b)(ii); however, this mitigating circumstance seems to be extended to the disclosure of any other crime, whereas Article 6(b)(ii) applies only if another offender of the same crime is brought to justice. Finally, No 4 provides for mitigation of the penalty if "the offender has voluntarily allayed the harm caused" and thus corresponds to Article 6 (b) (i).

Article 59 of the Lithuanian Criminal Code constitutes a general rule for mitigating circumstances, that names two alternative criteria: the first one, "the perpetrator helped to detect this act or the persons who participated therein", corresponds to Article 6(b)(ii) of the Framework Decision, whereas the second one, "the perpetrator confessed to having committed the act provided for in the criminal law and sincerely regrets it" may be interpreted as equivalent to Article 6(a).

The Polish Criminal Code contains several generally applicable provisions providing mitigating circumstances. Article 60(2)3), "the offender has attempted to prevent loss or injury", is similar to Article 6(b)(i), but does not require the actual success of prevention or mitigation of the effects, thus making lower demands. Article 60(3), "the offender discloses information about his accomplices and the main circumstances of the offence to the authorities responsible for pursuing offences" corresponds to Article 6(b) (ii) and (iii). In addition, generally applicable circumstances suspending the execution of the penalty or exonerating from criminal liability are provided for.

The Czech Republic refers to generally applicable provisions implementing Article 6 of the Framework Decision – Sections 66, 40(3) and 33(i)-(j) of its Criminal Code- without providing the text of the provisions nor giving further details.

The Netherlands states that no transposition of this provision was considered necessary: since under the Dutch Criminal Code there are no minimum sentences, the legal definition of the possibility of reducing the sentence is not required. According to the comments submitted, the judge, when ruling on a case, must take into account the circumstances of the perpetrator. When determining the severity of a sentence, he might take into account the attitude of the perpetrator, for example his leading assistance to the inquiry.

According to the information submitted by Malta, there is no provision transposing Article 6 of the Framework Decision.

6.2. Assessment

As a preliminary remark, it is important to bear in mind that transposition of Article 6 is optional. Therefore, Member States' legislation may perfectly comply with the Framework Decision despite their partial or lack of implementation of Article 6.

Of all the countries evaluated above, only Cyprus, Greece, Hungary and Luxembourg have introduced specific mitigating circumstances for the penalty imposed for terrorist crimes, adopting some of the criteria of Article 6. It should be noted that Cypriot, Greek and Luxembourgish provisions do not follow the Framework Decision in requiring that the offender renounces t