REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism
Date: 2014-09-05
Institutions: European Commission
Subjects: application of EU law, approximation of laws, fight against crime, fundamental rights, offence, rule of law, terrorism













EUR-Lex - 52014DC0554 - EN











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52014DC0554

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism /* COM/2014/0554 final */









TABLE OF CONTENTS
1............ Introduction. 3
1.1......... Background. 3
1.2......... Main elements and
purpose of the 2008 Framework Decision. 3
1.3......... Scope of the
implementation report 4
2............ Transposition by
Member States. 5
2.1......... Criminalisation of the
new offences of public provocation, recruitment and training for terrorism   5
2.1.1...... Public provocation  5
2.1.2...... Recruitment for terrorism  6
2.1.3...... Training for terrorism  7
2.2......... Ancillary offences. 9
2.2.1...... Aiding and abetting  9
2.2.2...... Attempt  9
2.3......... Penalties for natural
persons. 9
3............ Concluding remarks. 10
REPORT
FROM THE COMMISSION TO THE EUROPAN PARLIAMENT AND THE COUNCIL
on the
implementation of Council Framework Decision 2008/919/JHA of 28 November 2008
amending Framework Decision 2002/475/JHA on combating terrorism

1.                      
Introduction 
1.1.                
Background

Framework Decision
2002/475/JHA on combating terrorism ('FD 2002'[1])
provided the basis for the approximation of criminal law provisions on
terrorist offences. In response to evolving threats of radicalisation,
recruitment and terrorism new offences of public provocation, recruitment and
training for terrorism were introduced by Framework Decision 2008/919/JHA ('FD
2008'[2]).
Similar terrorism offences had already been introduced by the 2005, the Council
of Europe Convention on the Prevention of Terrorism. Also, the UN had called
upon States to explore ways and means to counter incitement of terrorist acts
as well as terrorism manifestations on the internet.[3] 
Member States were
obliged to adopt and notify implementing measures by 9 December 2010. The
Commission was to draw up a report based on this information. The Council
should then have assessed, by 9 December 2011, whether Member States had taken
the necessary measures to comply with FD 2008. [4]
As of 1st December 2014, the Commission will have the competence to
appraise Member States' compliance and to initiate infringement proceedings if
necessary. 

1.2.                
Main elements and purpose of the 2008 Framework
Decision 

FD
2008 established three new offences linked to terrorism, i.e. 'public provocation
to commit a terrorist offence', 'recruitment to terrorism' and 'training for
terrorism'[5].
Member States are required to criminalise aiding and abetting the new offences[6].
Criminalisation of attempted recruitment and training for terrorism is optional[7].

FD 2008 aims to reduce the
dissemination of messages and material that may incite people to commit terrorist
attacks[8]
and to adapt current legislation to changes in the modus operandi of
terrorist activists and supporters. These include in particular the replacement
of structured and hierarchical groups by semi-autonomous cells or lone actors and
the increased use of the internet to inspire, mobilise, instruct and train
local terrorist networks and individuals.[9]
The provisions in place to implement FD 2002 were considered insufficient in
that conduct such as disseminating messages of public provocation which did not
actually incite a particular person to commit a terrorist offence, disseminating
messages encouraging people to become terrorists without reference to a
specific terrorist offence, or disseminating on the internet terrorist
expertise not aimed at supporting the activities of a specific terrorist group,
were not necessarily criminalised. FD 2008 was designed to close this gap, to
promote law enforcement and to improve police and judicial cooperation. 
Article
2 of FD 2008 clarifies that it will not have the effect of requiring Member
States to take measures in contradiction of inter alia fundamental
principles relating to freedom of expression. Article 3(1) reminds Member States of the need to ensure that the criminalisation shall be proportionate to the
legitimate aims pursued and necessary in a democratic society, excluding all
forms of arbitrariness and discrimination. These provisions reflect the safeguards
in Article 12 of the Council of Europe Convention. Furthermore, the new
offences are not meant to include the dissemination of material for scientific,
academic or reporting purposes or the expression of polemic or controversial
views in the public debate on sensitive political issues as guaranteed by the
right to freedom of expression.

1.3.                
Scope of the implementation report

The description and
analysis in this report are primarily based on the information Member States
provided, supplemented by publicly available information and findings of an
external study.
The report focusses on
the measures Member States have taken so far to implement the new offences,
including the related ancillary offences and the respective penalties[10].
It assesses whether Member States have implemented FD 2008 within the specified
timeframe, whether they fulfil the requirements of clarity and legal certainty
and achieve the objectives of FD 2008. The scope and the potential for
successful prosecutions under these offences also depend on the correct
implementation of the (unaltered) provisions contained in FD 2002. While this
report does not (re-)assess compliance with these provisions[11],
it nevertheless draws attention to the findings of previous implementation
reports and the shortcomings identified therein.[12] Unless
remedied, such shortcomings will affect the scope of the new offences of public
provocation, recruitment and training for terrorism.

2.                      
Transposition by Member States 
2.1.                
Criminalisation of the new offences of public provocation,
recruitment and training for terrorism

Most
Member States have criminalised public provocation, recruitment and training
for terrorism, even if in some cases the scope of the provisions is more
limited than intended by FD 2008. 
Most
Member States had to adopt specific provisions since the preparatory or
inchoate behaviour had not been explicitly criminalised and did not fall under
the general provisions relating to participation and attempt. Subsequent to the
adoption of the 2005 Council of Europe Convention on the Prevention of
Terrorism, a number of Member States had already adopted measures to criminalise
the three new offences (DK, EE, IT, LV, MT, FI and UK).[13]
Only a small number of Member States claimed that existing general provisions
would cover the conduct in question. 
Most
Member States transposed FD 2008 by amending or introducing provisions in the
Criminal Code, while a smaller number adopted or amended special acts on
combating terrorism (IE, CY, PT, RO, SE, UK), or relied on other acts,
such as the Press Law of 1881 (FR).[14]
Of
those needing to adopt new measures, a relatively small number did so within
the prescribed timeframe (DE, ES, CY, NL, SI , SK, SE). The other Member
States transposed FD 2008 only in 2011 (BG, CZ, AT, PL, PT), 2012 (FR,
LU, RO) or 2013 (BE, HR, LT, HU). Two Member States have not yet
adopted the necessary legislation (IE, EL)[15].


2.1.1.          
Public provocation 

Article
3(1)(a) of FD 2002 as amended defines public provocation as ''…the
distribution, or otherwise making available, of a message to the public, with
the intent to incite the commission of one of the offences listed in Article
1(1)(a) to (h), where such conduct, whether or not directly advocating
terrorist offences, causes a danger that one or more such offences may be
committed;…'' 
Less than half of
Member States have adopted specific provisions explicitly criminalising the
dissemination of messages to the public with a view to inciting terrorist
offences, closely aligned to the wording of FD 2008 (BE, DE, IE,
ES, HR, CY, LU, RO, SI, FI, UK). The remaining Member States chose to rely on provisions
criminalising in more general terms 'provocation' (BG, DK, MT, PL, PT,
SK, SE), 'incitement' (EE, FR, IT, LV, LT, HU) or the facilitation or
support of terrorist offences (CZ, NL, AT, PL). 
Relying on provisions which
relate in more general terms to public incitement or provocation instead of relying
on the mere intent to incite terrorist offences as required by FD 2008 risks criminalising
only 'direct provocation'[16],
instead of 'indirect provocation' merely causing a danger that one or more
offences be committed (BG, EE, FR where the provision is explicitly
limited to direct provocation, IT, LT, HU, MT). 'Indirect provocation'
may still be covered if the national provisions actually cover preparatory or
facilitating behaviour (as this seems to be the case in CZ, EE, NL,
AT, PL, PT), capture behaviour that merely causes a danger of a
terrorist offence being committed (as this seems to be the case in LV, AT,
SK) irrespective of the terrorist offences being committed or attempted
(CZ, SE) or are applied by the national courts to behaviour that
can be qualified as indirect provocation (as it seems to be the case in DK).

Some Member States clarify
explicitly that public provocation is punishable irrespective of whether a
person has actually been encouraged (e.g. UK) or whether the terrorist
offence has actually been committed (e.g. IE, CY, LU) and also
in cases in which the behaviour encourages terrorist offences generally (UK).
Some Member States
criminalise not only provocation to commit terrorist offences, but also
provocation to prepare and instigate such offences (UK) or incitement to
train or be trained (RO). Some Member States criminalise not only the
act of disseminating but also the act of obtaining or possessing material
intended for terrorist propaganda purposes (DE, UK). While most Member States criminalise only intentional behaviour, in at least
one Member States reckless behaviour is also criminalised (UK). Finally, some Member States have introduced more specific offences, such as the
offence of public dissemination of terrorist propaganda in addition to the
offence of encouragement of terrorism (UK), public glorification,
promotion or approval of terrorism (DK, ES, LT AT, SI,
SK) or humiliation and contempt of victims of terrorism (ES, LT).
On the other hand, in some cases, not all terrorist offences listed in Article
1 of FD 2002 seem to be covered (DE). 

2.1.2.          
Recruitment for terrorism 

Recruitment for
terrorism is defined in Article 3(1)(b) as amended as ''soliciting another
person to commit one of the offences listed in Article 1(1)(a) to (h), or in
Article 2(2)…''.
Most Member States have
adopted specific provisions criminalising the act of soliciting another person
to commit a terrorist offence and to participate in the activities of a
terrorist group. Recruitment to carry out terrorist offences (within the
meaning of Article 1 of FD 2002) and recruitment into a terrorist group (within
the meaning of Article 2 of FD 2002) are part of one and the same provision in
just under half of Member States (BE, CZ, DK, ES, HR, LT, LU, HU, NL, SI, FI).
Several other Member States have separate provisions for both forms of
recruitment (DE, FR, AT, UK). In some Member States, only recruitment to
carry out terrorist offences appears to be punishable, and not recruitment to
take part in the activities of terrorist groups as defined in Article 2(2) of FD
2002 (BG, EE, IE, MT, PT, RO, SK, SE,
doubtful in CY and LV whether reference to terrorist acts
captures also participation in a terrorist group). 
Of the Member States that
introduced new specific provisions to cover the new offences, few used the term
'solicit' in their definition of recruitment (HR, LU, SK 'request',
MT: 'solicit' or 'recruit'). Most Member States appear to have chosen
the term 'recruit' (BE, BG, DE, EE, IE, IT, ES, LV, LT,
MT: 'solicit' or 'recruit', PT, RO, SI: 'conscription',
FI) or other terms such as 'seek to induce' (SE), 'inciting' and 'provoking'
(NL), 'instigation' (HU) or 'encouragement' (CY). In some
Member States, it is argued that the term 'recruit' would require some sort of
plan or minimum institutional framework to which the recruited person is
supposed to adhere to (PT). This may raise doubts as to whether
encouraging a 'lone actor' to commit terrorist acts is actually criminalised
under the national provisions. 
While most Member
States refer to recruitment (or synonyms) in general terms, a small number
specify in more detail the punishable behaviour (in FR the definition
refers to offering gifts and other benefits to threaten or pressure a person to
commit a terrorist offence). This may unduly restrict the scope of the
provision in that it could not cover cases where a person is encouraged in
other ways.  
Few Member States
clarify explicitly that recruitment is punishable even if the person does not
consent to committing the terrorist offence (CY, LU).
Some Member States invoke
existing or general provisions covering various forms of participation in a
terrorist offence (e.g. CZ, AT), facilitation of a terrorist offence
(e.g. PL), support to a terrorist group (e.g. CZ, DE, AT),
incitement to commit terrorist offences or to belong to a proscribed group (e.g.
UK), attempted participation, conspiracy (DE, FR: 'association
de malfaiteurs') or other preparatory activities (e.g. HU, UK).
A potential risk is that provisions relating to the support of terrorist
organisations or the participation in a conspiracy do not capture recruitment
of ''lone actors'' (e.g. CZ, DE, FR, UK). This may become a concern if
no other provision criminalises this behaviour. The reliance on general provisions
may also raise doubts as to whether inchoate offences are actually criminalised.
This will depend on the interpretation and application of concepts such as the facilitation
of or preparatory acts to terrorist offences. 
While in some cases,
recruitment would not seem to cover all offences listed in Art 1 (1)(a) to (h) of
FD 2002 (IT), other Member States criminalise not only recruitment to
commit a terrorist offence but also recruitment to facilitate (DK), prepare
(FI) or participate (LT, SI, SK) in the terrorist
offence. In some Member States, the definition of recruitment extends to
terrorist financing (DK). In certain Member States, any person who is
aware that his or her activity promotes terrorist offences can be punished (FI).
Lastly, some countries also criminalise allowing oneself to be recruited (e.g. DK).


2.1.3.          
Training for terrorism 

Training
for terrorism is defined in Article 3(1)(c) as amended as 'providing
instruction in the making or use of explosives, firearms or other weapons or noxious
or hazardous substances, or in other specific methods or techniques, for the
purpose of committing one of the offences listed in Article 1(1)(a) to (h),
knowing that the skills provided are intended to be used for this purpose.'
Most
Member States have adopted specific provisions explicitly criminalising the
instruction in methods and techniques for the purpose of committing terrorist
offences drafted closely aligned to the wording of FD 2008 (BE, DE,
IE, HR, IT, CY, LU, MT, AT, PT, RO,
SI, SK, FI, SE, UK). 
Some
Member States refer in more general terms to 'training for committing terrorist
offence' (BG, DK, EE, ES, LV) or to the 'provision
of information, knowledge and skills for committing a terrorist offence' (LT,
NL), without mentioning the specific skills listed in Article 3 of FD
2008 (even if, in some cases, additional clarifications appears to be given in
explanatory notes to the law; e.g. DK). 
To
the extent that Member States rely on existing general provisions on participation,
preparation, facilitation or support of terrorist offences (CZ, HU, PL),
it is unclear whether national law criminalises the provision of training in
cases in which no terrorist offence has been committed or attempted. This will
ultimately depend on the interpretation and application of these concepts in
national law. Furthermore, it is unclear whether the concept of conspiracy ''
(e.g. 'association de malfaiteurs' in FR) encompasses the mere
dissemination of training material with no established links to a terrorist group.

Most
Member States criminalise both instruction and training (e.g. BE, DK
also referring to 'teaching', IE, IT, MT, AT, PT,
RO, UK), while some refer only to training (BG, EE, ES, LV, FI)
or some form of instruction (DE, HR and CY: 'providing guidance',
LU, NL: 'providing information' and 'teaching', SI, SK: 'providing
expertise', SE). Whilst the term 'training' could be understood to imply
some kind of relationship between the trainer and the trainee, 'instruction'
would cover the dissemination of information for self-instruction (e.g. IT,
AT).
Some
national provisions provide further clarifications, for example, that training
is punishable if provided to one or more particular persons (BG, UK)
or generally (UK) or that the skills may be used for already specified
acts of terrorism or terrorism offences generally (UK) or that training
is punishable even if the trainee will not carry out or participate in a
terrorist attack (DK, LU). 
Intent
is usually required for the actions to constitute an offence, but in some Member
States, awareness that the instruction given encourages people to commit
terrorist offences (FI) or negligence (UK in relation to
attendance at training camps) are sufficient. In other cases, the required
intent seems to be presumed with the defendant bearing the burden of proof that
giving or receiving instruction or training was done lawfully (IE, UK).

While
in some Member States, terrorist offences for which training is provided do not
include all the offences enumerated in Article 1(1) of FD 2002 (e.g. DE,
IT), other Member States go beyond the requirements, by stipulating, for
example that training is criminalised also in relation to the financing of
terrorism (DK) or when the skills are to be used by a terrorist
organisation (CY). In some Member States, training is not only
punishable if provided with the purpose of committing a terrorist offence but
also with the purpose of participating in such acts (SI) or of committing
crimes with the objective of preparing or facilitating a terrorist crime (NL,
FI, UK) or assisting the commission or preparation by others of terrorist
acts (UK). Furthermore, several Member States criminalise the act of
receiving training or instruction, also referred to as 'passive training' (BE,
 DK, DE, IE, NL, AT, RO, UK). Some Member States have adopted additional specific provisions criminalising the
attendance at training camps (e.g. UK).

2.2.                
Ancillary offences 
2.2.1.          
Aiding and abetting 

Article
4(1) of FD 2002 as amended requires Member State to take the necessary measures
to ensure that aiding or abetting the new offences as defined in Article 3 is
made punishable. Almost all Member States have criminalised aiding and abetting
of the new offences. In most Member States, general provisions on aiding and
abetting are automatically applicable to the new offences. Only CY has explicitly
stated in the relevant provisions that aiding and abetting of the new offences
is not an offence.

2.2.2.          
Attempt 

Article
4(4) of FD 2002 as amended gives Member States the option to criminalise attempted
training or recruitment to terrorism. In most Member States the general rules
on attempt apply without further distinction or qualification to all crimes or offences
and thus also the new terrorist offences. As a result, most Member States have
criminalised attempt to recruit and train a person for terrorist purposes and attempted
public provocation (BE, BG, CZ, EE, ES, HU, LV, LT, MT, NL, AT, PL). In some Member States, jurisprudence
would however appear to consider that general provisions on attempt are not
applicable to inchoate offences (e.g. IT).
In
certain Member States, attempt is only punishable in the case of felonies,
criminal offences, crimes with certain minimum sanctions and not in the case of
less serious offences. While in some Member States all three new offences are
classified as such crimes (DK, HR, PT), in others, they
are not. Attempt is therefore not punishable (DE; SI doubtful). 
In
other Member States, attempt is punishable if specifically provided for. Some
Member States have explicitly criminalised attempt to commit any of the three
new offences (IE, SE, UK). Some have criminalised only attempt
to train and recruit a person for terrorist purposes (LU, SK, FI) and
others do not criminalise attempt (CY: explicitly excluding the
punishability of attempt of the new offences, RO). 

2.3.                
Penalties for natural persons

The
level of penalties vary significantly between Member States.[17]
The minimum term for imprisonment ranges from below one year to up to 20 years.
Similarly, the maximum term varies between two and 25 years or life
imprisonment. Fines can be an alternative (DK, DE, IE, LU, NL, UK) or an additional penalty to imprisonment (BE, IE, FR, LU, UK). 
Over
half of Member States impose the same penalty for all three new offences (BE,
BG, CZ, EE, IE, HR, LU, HU, MT, PL, SI, SK, SE). In Member States with
different penalties for the three new offences, the penalties for public
provocation are in general lower than for the other two offences (DK, DE,
ES, IT, CY, LV, LT, PT, RO, FI, UK). 
Where
Member States criminalise being recruited or receiving training or instructions
as well as recruiting and giving training or instructions, in most cases the
same penalty range is applied (DK, DE, IE, NL, AT). In other cases, taking
part in training is criminalised carrying a lower penalty than providing the
training (RO). Similarly, where Member States have criminalised not only
the dissemination, but also the act of obtaining or possessing terrorist
propaganda, the same penalties apply for both offences (DE, UK). Where a distinction is made between provocation and the apology/glorification of
terrorism, some Member States provide for lower penalties for apology of
terrorism (DK, ES), whereas other Member States apply the same penalty (DK,
AT, SI, SK, UK). Where Member States criminalise training and instruction,
in most cases the same penalty is applied to both. In other Member States however
the penalty for instruction is lower than the penalty for training (AT).
Several Member States apply different penalties depending on whether
recruitment is done on behalf of a terrorist group, in which case higher
penalties can be imposed (DK, HU, AT).

3.                      
Concluding remarks

Most
Member States have adopted measures designed to criminalise public provocation,
recruitment and training for terrorism in accordance with FD 2008. The
Commission notes that two Member States (IE and EL) have not yet
implemented the FD 2008 and urges them to adopt the necessary legislative
measures without further delay. While most Member States are broadly in
compliance with FD 2008, there are a number of potential concerns in particular
in relation to the criminalisation under national provisions of 'indirect
provocation' and recruitment of 'lone actors'. Member States are invited to
provide the Commission with additional explanations and information to allow it
to complete its assessment.  
Discussions
on the impact of counter terrorism legislation on fundamental rights had taken
place mostly in relation to the adoption of measures implementing FD 2002 and
to a lesser extent in relation to the new offences[18]. While
fundamental rights concerns may play a role in the interpretation and application
of the national provisions establishing the three new offences, they do not
appear to have made it necessary to limit the scope of the relevant legal
provisions under national law.[19]

The
Commission notes that stakeholders advocate enhanced exchanges of experiences
and practices between prosecutors and judges and see the need to integrate law
enforcement efforts into a more comprehensive approach which should include early
prevention of radicalisation and recruitment to terrorism.
The
Commission encourages Member States to monitor and evaluate the application of
criminal law provisions on terrorism in practice. In doing so, consideration
should be given to the protection of fundamental rights as well as the broader
policy approach of tackling radicalisation and recruitment to terrorism.
The
Commission will continue to monitor the effectiveness and impact of the
Framework Decision on terrorism.
[1]               OJ L 164, 22/06/2002, p. 3–7.
[2]               OJ L 330, 09/12/2008, p. 21–23.
[3]               See UN Security Council Resolution 1624(2005) as well
as the UN Global Counter Terrorism Strategy adopted in 2006.
[4]               See Article 3(1) and (2) of FD 2008.
[5]               See Article 1(1) of FD 2008 amending Article 3.
Offences linked to terrorist activities as defined in Article 3 of FD 2002 only
comprised aggravated theft, extortion and drawing up false administrative
documents with a view to committing terrorist offences. The new offences were
added as Article 3(1) (a) to (c) and the previous offences in Article 3 (a) to
(c) became now Article 3 (1) (d) to (f).
[6]               See Article 1(2) of FD 2008 amending Article 4 of FD
2002 (introducing Article 4(1) of FD 2002).
[7]               See Article 1(2) of FD 2008 amending Article 4 of FD
2002 (introducing Article 4(4) of FD 2002).
[8]               See recital 7 of FD 2008.
[9]               See in particular recitals 4 and 5 of FD 2008. See
also the most recent European Union Terrorism Situation and Trend Report 2014
published by Europol highlighting inter alia the use of the internet and
social media as tools for planning, financing, recruitment, communication,
instruction, training and propaganda believed to have contributed to the
acceleration of (self-) radicalisation among EU citizens.
[10]             See also recital 11 of FD 2008.
[11]             In most cases, Member States only provided information
necessary for  assessing compliance with the amended Articles 3 and 4 of the
Framework Decision.  
[12]             See first implementation report of 8 June 2004
(COM(2004) 409 final and SEC(2004) 688) and second implementation report of 6
November 2007 (COM(2007) 681 final and SEC(2007) 1463). It results from these
implementation reports that there are shortcomings as regards the
implementation of the provisions relating to core terrorist offences (see
Article 1 FD 2002), the liability of legal persons (see Articles 7 and 8 FD
2002) as well as the jurisdictional rules (see Articles 9 and 10 FD 2002). 
[13]             All Member States (except CZ) have signed the
Convention. A number of Member States  have not yet ratified it (BE, CZ, IE,
EL, IT, LT, MT, PT, UK).
[14]             For a detailed overview of the legislative measures
Member States adopted, see table 1 of the Commission Staff Working Document
(SWD(2014)xxx).
[15]             The Irish Government submitted the Criminal Justice
(Terrorist Offences) (Amendment) Bill 2012 and informed the Commission of its
forthcoming submission to Parliament. The description in this report is based
on that Bill. The Greek Government informed the Commission of the preparation
of a Bill titled 'Ratification of the European Convention for the Prevention of
Terrorism and the Protocol amending the European Convention on the suppression
of terrorism and related legislation', but it did not submit this Bill.
[16]             'Direct provocation' describes cases in which
incitement has resulted in a person committing or at least attempting to commit
a terrorist offence, and in which incitement related to a specific terrorist
offence.
[17]             For a detailed overview of the applicable penalties,
see table 2 of the Commission Staff Working Document.
[18]             Discussions related to inter alia issues of
legal certainty, the respect of the principle of proportionality of sanctions
for offences of a preparatory nature and the potential tension between freedom
of speech and the offence of public provocation. 
[19]             In their notifications to the Commission, Member States
did not invoke Article 2 or 3 of FD 2008 in order to limit the scope of the new
terrorist offences or maintain fundamental rights concerns as a reason not to
implement the new offences.