Proposal for a Council Framework Decision on combating terrorism (COM(2001) 521 final — 2001/0217(CNS))
Date: 2001-11-27
Institutions: European Commission
Subjects: aggravating circumstances, crime against individuals, extradition, imprisonment, judicial cooperation, mitigating circumstances, penalty, terrorism, threat to national security

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Official Journal of the European Communities

27.11.2001

Proposal for a Council Framework Decision on combating terrorism

(2001/C 332 E/17)

COM(2001) 521 final (cid:151) 2001/0217(CNS)

(Submitted by the Commission on 19 September 2001)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Union,
and in particular Article 29, Article 31(e) and Article 34(2)(b)
thereof,

update of
the scoreboard to review progress on the
creation of an area of (cid:145)freedom, security and justice(cid:146) in
the European Union (second half of 2000) (4). The La
the Informal Council
Gomera Declaration adopted at
Meeting of 14 October 1995 affirmed that
terrorism
constitutes a threat to democracy, to the free exercise of
human rights and to economic and social development.

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

(4) On 30 July 1996 twenty-five measures to fight against
terrorism were advocated by the leading industrialised
countries (G7) and Russia meeting in Paris.

Whereas:

(1) Terrorism constitutes one of the most serious violations of
the principles of human dignity,
liberty, democracy,
respect for human rights and fundamental freedoms and
the rule of law, principles on which the European Union
is founded and which are common to the Member States.

(5) The Convention based on Article K.3 of the Treaty on
European Union, on the establishment of a European
Police Office (Europol convention) (5) refers in particular
in Article 2 to improving the effectiveness and coop-
eration of
the competent authorities in the Member
States in preventing and combating terrorism.

The

relating

terrorism.

(2) All or some Member States are party to a number of
conventions
European
to
Convention on the Suppression of Terrorism (1) of 27
January 1977 establishes that
terrorist offences cannot
be regarded as a political offences or as offences
connected with political offences or as offences inspired
by political motives. That Convention was the subject of
Recommendation 1170 (1991) adopted by the Standing
Committee,
the Parliamentary
Assembly of the Council of Europe, on 25 November
1991. The United Nations has adopted the Convention
terrorist bombings of 15
for
December 1997 and the Convention for the suppression
of financing terrorism of 9 December 1999.

acting on behalf of

suppression of

the

(3) At Union level, on 3 December 1998 the Council adopted
the Action Plan of the Council and the Commission on
how to best implement the provisions of the Treaty of
Amsterdam on an area of freedom, security and justice (2).
the
Terrorism was referred to in the conclusions of
Tampere European Council of 15 and 16 October
1999 (3), and of
the Santa Mar(cid:237)a da Feira European
It was also
Council
mentioned in the Commission’s Communication to the
Council and the European Parliament on the biannual

if 19 and 20 June 2000 (3).

(1) ETS No 90.
(2) OJ C 19, 23.1.1999, p. 1.
(3) http://ue.eu.int/en/Info/eurocouncil/index.htm

to

(6) Other measures having an impact on terrorism adopted
the Council
by the European Union are as follows:
Decision of 3 December 1998 instructing Europol
to
deal with crimes committed or likely to be committed
in the course of terrorist activities against the life, limb,
personal freedom or property (6); Joint Action 96/610/JHA
of 15 October 1996 adopted by the Council on the basis
of Article K.3 of
the Treaty on European Union
concerning the creation and maintenance of a Directory
of specialised counter-terrorist competences, skills and
expertise
counter-terrorism-cooperation
between the Member States of the European Union (7);
Joint Action 98/428/JHA of 29 June 1998 adopted by
the Council on the basis of Article K.3 of the Treaty on
European Union on the creation of a European Judicial
Network (8), with responsibilities in terrorist offences, in
particular Article 2;
Joint Action 98/733/JHA of 21
December 1998 adopted by the Council on the basis of
Article K.3 of the Treaty on European Union on making it
a criminal offence to participate in a criminal organisation
in the Member States of the European Union (9); and the
Council Recommendation of 9 December 1999 on coop-
eration in combating the financing of terrorism (10).

facilitate

(4) COM(2000) 782 final.
(5) OJ C 316, 27.11.1995, p. 1.
(6) OJ C 26, 30.1.1999, p. 22.
(7) OJ L 273, 25.10.1996.
(8) OJ L 191, 7.7.1998, p. 4.
(9) OJ L 351, 29.12.1998, p. 1.
(10) OJ C 373, 23.12.1999, p. 1.

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(7) The important work performed by international organi-
sations, in particular the UN and the Council of Europe,
must be complemented with a view to closer approxi-
mation within the European Union. The profound
change in the nature of terrorism, the inadequacy of tradi-
cooperation in
tional
judicial and police
loopholes must be
combating it and the existing legal
combated with new measures, namely,
establishing
minimum rules relating to the constituent elements and
penalties in the field of terrorism.

forms of

(13) Jurisdictional rules must be established to ensure that the

offence may be prosecuted.

(14) The European Convention on Extradition of 13 December
1957 is taken into account in order to facilitate pros-
ecution when the offence is committed in a Member
State which does not extradite its own nationals.

(8) Since these objectives of the proposed action cannot be
sufficiently achieved by the Member States unilaterally,
and can therefore, because of the need for reciprocity,
be better achieved at the level of the Union, the Union
may adopt measures, in accordance with the principle of
subsidiarity as referred to in Article 2 of the EU Treaty
and as set out in Article 5 of the EC Treaty. In accordance
with the principle of proportionality, as set out in the
this Framework Decision does not go
latter Article,
beyond what
to achieve those
is necessary in order
objectives.

(9) Measures should be adopted applying not only to terrorist
acts committed within the Member States but also to
those which otherwise affect Member States. While
police and judicial cooperation measures are the appro-
priate way to combat terrorism in the Union and on an
actions may be
complementary
international
in the fight
adopted in order to enhance the impact
against
the
Union’s external relations.

terrorist acts and ensure consistency of

level,

(10) It

the definition of

is necessary that

the constituent
elements of terrorism be common in all Member States,
including those offences referred to terrorist groups. On
the other hand, penalties and sanctions are provided for
natural and legal persons having committed or being
liable for such offences, which reflect the seriousness of
such offences.

(11) The circumstances should be considered aggravated where
the offence is committed with particular ruthlessness,
affects a large number of persons or is of a particular
serious and persistent nature; or committed against
persons whose representative position,
including inter-
nationally protected person, as members of an executive
or legislature or their work, dealing with terrorists, makes
them terrorist targets.

(12) The

circumstances must be mitigating if

terrorists,
renouncing their terrorist activity, provide the adminis-
trative or
relevant
information helping them to fight against terrorism.

authorities with some

judicial

(15) In order to improve cooperation and in compliance with
data protection rules, and in particular the Council of
Europe Convention of 28 January 1981 for the Protection
Individuals with regard to Automatic Processing of
of
Personal Data (1), Member States
should afford each
other the widest judicial mutual assistance. Operational
contact points should be established for the exchange of
information or adequate use should be made of existing
cooperation mechanism for that purpose.

extortion,

(16) Victims of certain kind of
can be

terrorist offences, such as
vulnerable. Each
threats,
Member State should accordingly ensure that investigation
or prosecution not be dependent on the report or accu-
sation made by a person subject to the offence.

rather

(17) This Framework Decision respects the fundamental rights
and observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union,
and notably Chapter VI thereof,

HAS DECIDED AS FOLLOWS:

Article 1

Subject matter

this Framework Decision is
constituent
relating to the

to establish
The purpose of
minimum rules
elements of
criminal acts and to penalties for natural and legal persons
terrorist offences
who have committed or are liable for
which reflect the seriousness of such offences.

Article 2

Scope

This Framework Decision shall apply to terrorist offences:

(a) committed or prepared in whole or in part within a

Member State; or

(b) committed by a national of a Member State; or

(1) ETS No 108.

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(c) committed for the benefit of a legal person established in a

Article 4

Member State; or

Instigating, aiding, abetting and attempting

(d) committed against the institutions or people of a Member

State.

Member States shall ensure that instigating, aiding, abetting or
attempting to commit a terrorist offence is punishable.

Article 3

Terrorist Offences

Article 5

Penalties and sanctions

1.
Each Member State shall take the necessary measures to
ensure that the following offences, defined according to its
national
law, which are intentionally committed by an indi-
vidual or a group against one or more countries, their insti-
tutions or people with the aim of
intimidating them and
seriously altering or destroying the political, economic, or
social structures of a country, will be punishable as terrorist
offences:

1. Member States shall ensure that terrorist offences and
conducts referred to in Articles 3 and 4 are punishable by
effective, proportionate and dissuasive penalties.

2. Member States shall ensure that terrorist offences referred
to in Article 3 are punishable by terms of deprivation of liberty
with a maximum penalty that is no less than the following:

(a) Murder;

(b) Bodily injuries;

(a) the offence referred to in Article 3(1)(a): Twenty years

(b) the offence referred to in Article 3(1)(l): Fifteen years

(c) Kidnapping or hostage taking;

(c)

the offences referred to in Article 3(1)(c), (g), (h) and (i):
Ten years

(d) Extortion;

(e) Theft or robbery;

(f) Unlawful seizure of or damage to state or government
facilities, means of public transport, infrastructure facilities,
places of public use, and property;

(g) Fabrication, possession, acquisition, transport or supply of

weapons or explosives;

(h) Releasing contaminating substances, or causing fires,
endangering people, property,

floods,

explosions or
animals or the environment;

(i)

Interfering with or disrupting the supply of water, power,
or other fundamental resource;

(j) Attacks through interference with an information system;

(d) the offence referred to in Article 3(1)(m): Seven years

(e)

the offences referred to in Article 3(1) (f) and (j): Five years

(f)

the offence referred to in Article 3(1)(b): Four years

(g) the offences referred to in Article 3(1)(d), (e), and (k): Two

years.

3. Member States shall ensure that ancillary or alternative
sanctions such as community service, limitation of certain civil
or political rights or publication of all or part of a sentence
may be imposed for terrorist offences and conduct referred to
in Articles 3 and 4.

4. Member States shall ensure that fines can also be imposed
for terrorist offences and conduct referred to in Articles 3 and
4.

(k) Threatening to commit any of the offences listed above;

Article 6

(l) Directing a terrorist group;

(m) Promoting of, supporting of or participating in a terrorist

group.

2.
For the purpose of this Framework Decision, terrorist
group shall mean a structured organisation established over a
period of time, of more than two persons, acting in concert to
commit terrorist offences referred to in paragraph (1)(a) to
(1)(k).

Aggravating circumstances

Without prejudice to any other aggravating circumstances
defined in their national
shall
ensure that the penalties and sanctions referred to in Article
5 may be increased if the terrorist offence:

legislation, Member States

(a)

is committed with particular ruthlessness; or

(b) affects a large number of persons or is of a particular

serious and persistent nature; or

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(c)

other

internationally

is committed against Heads of State, Government Ministers,
elected
any
members
of
regional or local governments, judges, magistrates, judicial
or prison civil servants and police forces.

chambers, members

parliamentary

protected

person,

of

Article 7

Mitigating Circumstances

Member States shall ensure that the penalties and sanctions
referred to in Article 5 may be reduced if the offender:

committerrorist offences or engage in the conducts referred to
in Articles 3 and 4.

Article 9

Sanctions for legal persons

to Article

1. Member States shall ensure that a legal person held liable
effective,
is
8(1)
pursuant
proportionate and dissuasive sanctions, which shall
include
criminal or non-criminal
and may include other
sanctions such as:

punishable

fines

by

(a)

renounces terrorist activity, and

(a) exclusion from entitlement to public benefits or aid,

(b) provides the administrative or
information helping them to:

judicial authorities with

(b) temporary or permanent disqualification from the practice

of commercial activities,

(i) prevent or mitigate the effects of the offence,

(c) placing under judicial supervision,

(ii) identify or bring to justice the other offenders,

(d) a judicial winding-up order,

(iii) find evidence, or

(iv) prevent further terrorist offences.

Article 8

Liability of legal persons

1. Member States shall ensure that legal persons can be held
liable for terrorist offences or conduct referred to in Articles 3
and 4 committed for their benefit by any person, acting either
individually or as part of an organ of the legal person, who has
a leading position within the legal person, based on:

(a) a power of representation of the legal person, or

(b) an authority to take decisions on behalf of the legal person,

or

(c) an authority to exercise control within the legal person.

Apart

from the cases provided for

2.
in paragraph 1,
Member States shall ensure that a legal person can be held
liable where the lack of supervision or control by a person
referred to in paragraph 1 has made possible the commission
of terrorist offences or conduct referred to in Articles 3 and 4
that legal person by a person under its
for the benefit of
authority.

(e)

temporary or permanent closure of establishment which
have been used for committing the offence.

2. Member States shall ensure that a legal person held liable
pursuant
effective,
by
is
8(2)
proportionate and dissuasive sanctions or measures.

to Article

punishable

Article 10

Jurisdiction

1. Member States shall establish its jurisdiction with regard
to terrorist offences or conduct referred to in Articles 3 and 4
where the offence or conduct has been committed:

(a)

in whole or in part within its territory; or

(b) by one of

its nationals, provided that

that
Member State may require the conduct to be punishable
also in the country where it occurred; or

the law of

(c)

for the benefit of a legal person that has its head office in
the territory of that Member State; or

(d) against its institutions or people.

3.
Liability of a legal person under paragraphs 1 and 2 shall
not exclude criminal proceedings against natural persons who

2.
A Member State may decide that it will not apply, or that
it will apply only in specific cases or circumstances, a juris-
diction rule set out in paragraph 1(b), (c) or (d).

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3. Member States shall inform the General Secretariat of the
Council and the Commission accordingly, where appropriate
with an indication of the specific cases or circumstances in
which the decision applies.

Article 11

Extradition and prosecution

A Member State which, under its law, does not extradite
1.
its own nationals shall establish its jurisdiction over terrorist
offences or conduct referred to in Articles 3 and 4 when
committed by its own nationals on the territory of another
Member State or against another Member State’s institutions
or people.

A Member State shall, when one of its nationals is alleged
2.
to have committed,
in another Member State, a terrorist
offence or conduct referred to in Articles 3 and 4, and it
does not extradite that person to that other Member State
solely on the ground of his nationality, submit the case to its
competent authorities for the purpose of prosecution if appro-
priate.

information and exhibits

In order to enable prosecution to take place, the Member State
in which the offence or conduct was committed shall forward
to the competent authorities of the other State all the relevant
files,
in accordance with the
the European
procedures
Convention on Extradition of 13 December 1957. The
requesting Member State shall be informed of the initiation
and outcome of any prosecution.

laid down in Article 6(2) of

3.
For the purpose of this Article, a (cid:145)national(cid:146) of a Member
State shall be construed in accordance with any declaration
made by that State under Article 6(1)(b) and (c) of
the
European Convention on Extradition.

Article 12

Cooperation between Member States

In accordance with the applicable conventions, multi-
1.
lateral or bilateral agreements or arrangements, Member
States shall afford each other the widest measure of mutual
assistance in respect of proceedings
relating to terrorist
offences or conduct referred to in Articles 3 and 4.

2. Where several Member States have jurisdiction in respect
of such offences, they shall consult one another with a view to
coordinating their action in order to prosecute effectively. They
shall make full use of judicial cooperation and other mech-
anisms.

Article 13

Exchange of information

1.
Each Member State shall designate operational contact
points, which may be an existing operational structures or
one newly established for this purpose, for the exchange of
information and for other contacts between Member States
for the purposes of applying this Framework Decision.

Each Member State shall inform the General Secretariat of
2.
the Council and the Commission of its operational contact
point as referred to in paragraph 1. The General Secretariat
shall notify that information to the other Member States.

3. Where a Member State has information relating to the
future commission of a terrorist offence affecting another
Member State, it shall provide that information to the other
Member State. For that purpose operational contact points
referred to in paragraph 1 may be used.

Article 14

Protection and assistance to victims

Each Member State shall provide that investigations into or
prosecution of terrorist offences over which it has jurisdiction
shall not be dependent on the report or accusation made by a
victim of the offence, at least in cases where Article 8(1)(a)
applies.

Article 15

Implementation and reports

Member States shall take the necessary measures to comply
with this Framework Decision by 31 December 2002.

They shall communicate to the General Secretariat of
the
Council and to the Commission the text of any provisions
they adopt and information on any other measures they take
to comply with this Framework Decision.

On that basis the Commission shall, by 31 December 2003,
submit a report to the European Parliament and to the Council
on the operation of this Framework Decision, accompanied
where necessary by legislative proposals.

The Council shall assess the extent to which the Member States
have complied with this Framework Decision.

Article 16

Entry into force

This Framework Decision shall enter into force on the third day
following that of its publication in the Official Journal of the
European Communities.