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A victory for civil society on the EU definition of terrorism?

28 March 2012

There some signs that the strong concerns raised by civil society groups over the proposed EU definition of terrorism is having some effect on the original proposal put forward by the Commission which clearly extended the definition of terrorism to include protests and other democratic activities. At the 16 November meeting of the Justice and Home Affairs Council it was agreed that a Declaration should be added to the Framework Decision which reads:

"The Council declares that the framework decision on the fight against terrorism covers acts which are considered by all Member States of the European Union as serious infringements of their criminal laws committed by individuals whose objectives constitute a threat to their democratic societies respecting the rule of law and the civilisation upon which these societies are founded. It has to be understood in this sense and cannot be construed so as to argue that the conduct of those who have acted in the interest of preserving or restoring these democratic values, as was notably the case in some Member States during the Second World War, could now be considered as "terrorist" acts. Nor can it be construed so as to incriminate on terrorist grounds persons exercising their legitimate right to manifest their opinions, even if in the course of the exercise of such right they commit offences." (12647/4/01, 19.11.01)

A Declaration, if agreed, has no legal force and is simply a political statement so the wording of actual text adopted will need to be examined with care, especially as the majority of governments want a wide definition.

The European Parliament too took moves to try and clarify the purpose and intent of the proposed Framework Decision. The draft report to the Committee on Citizens' Freedoms and Rights was silent on the scope of the measure. However, the adopted report changes the crucial Article 3.1 on the scope of the Decision, where the Commission proposed Article 3, paragraph 1 read:

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 individual or a group against one or more countries, their institutions or people with the aim of intimidating them and seriously altering or destroying the political, economic, or social structures of a country, will be punishable as terrorist offences

The parliament report reads:

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 individual or a group against one or more countries, their institutions or people with the aim of intimidating them and seriously altering or destroying the fundamental freedoms, democracy, respect for human rights, civil liberties and rule of law on which our societies are based will be punishable as terrorist offences

On this measure the European Parliament is only "consulted" under Title VI of the Treaty on European Union, the final decision rests with the Council.

At the plenary session of the European Parliament, on 29 November, Mr Vittorino, the Commissioner for justice and home affairs, is reported as saying that protests would not be covered, "The Council and the Commission agreed this from the very outset", he said. This statement is hard to reconcile with the text of the Commission's proposal, its reference to "urban violence" and the Commission's website which refers to dealing with "radicals using violence".

Tony Bunyan, Statewatch editor, commented:

"It would appear that the detailed critiques from across civil society has made some in the Commission, the European Parliament and in the Council to think again about extending terrorism to include democratic dissent. The text of the Decision is crucial.

Now the Council has to withdraw the proposals to place protestors under surveillance, to police future demonstrations with national para-military police units, to create an EU-wide database on "suspected" protestors and all the proposed measures and operational cooperation which have nothing to do with combating terrorism"

Full-text of European Commission proposal: Text (pdf)
For full background see: Statewatch "Observatory" in defence of freedom and democracy