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Proposed expansion of EU terrorism law a threat to freedom of expression

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28 March 2012

It must be asked why the welcome proposals on "practical action to stem the use of explosives" have taken so long to be put forward? The Commission should focus on practical steps to improve cooperation between the Member States instead of trying to impose sweeping restrictions on freedom of expression

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As part of its latest package of counter-terrorism measures the European Commission has tabled amendments to the 2002 EU Framework Decision on combating terrorism. The proposed amendments [Proposal amending the 2002 Decision on combating terrism: COM (2007) 650] would create three new categories of criminal offence: provocation to commit terrorism, recruitment for terrorism and training for terrorism.

The concept of "recruitment" requires a direct link with the activities of a terrorist group as defined already in the Framework Decision, and the concept of "training" requires a direct link with violent terrorist activity as also defined in the Framework Decision.

But the "provocation" offence is extremely broad, as it does not require a direct encouragement to commit terrorist acts but applies to any statements which create a "danger" of such acts being committed:

"public provocation to commit a terrorist offence" means the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of [a terrorist offence as defined in the Framework Decision], where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed."

The wording of this definition is clearly likely to result in the criminalisation of the expression of political views (for example on the situation in Middle East or on certain conflicts within Member States) even if that expression does not in any way include the advocacy of terrorism to support those opinions. It will be enough that the authorities deem that there is a "danger" that this will happen. In fact, an actual terrorist offence as a consequence is expressly not necessary for the Framework Decision to apply.

Human rights safeguards dropped

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All three offences are taken from the text of the Council of Europe convention on the prevention of terrorism [CETS 196], except that Convention, unlike this framework decision, contains an important exceptions clause:

"Article 12 - Conditions and safeguards

1 Each Party shall ensure that the establishment, implementation and application of the criminalisation under Articles 5 to 7 and 9 of this Convention are carried out while respecting human rights obligations, in particular the right to freedom of expression, freedom of association and freedom of religion, as set forth in, where applicable to that Party, the Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and other obligations under international law.

2 The establishment, implementation and application of the criminalisation under Articles 5 to 7 and 9 of this Convention should furthermore be subject to the principle of proportionality, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness or discriminatory or racist treatment."

The proposed EU Framework Decision contains no human rights safeguards in its main text, as such safeguards appear only in the preamble, and there is no safeguard for proportionality as in Article 12(2) of the Convention. In the absence these of substantive human rights obligations, the Member States are much less likely to take adequate steps to protect freedom of expression and other fundamental rights when transposing the EU legislation.

As it stands the Commission's proposal raises serious doubts about the European Union's respect for the freedom of expression.

At present, the Council of Europe Convention is in force only in Romania, Denmark, Bulgaria and Slovakia among EU Member States, and in only three other non-Member States. All other Member States have signed it, except for the Czech Republic and Ireland. The EU Framework Decision would apply to more Member States and would ultimately be easier to enforce than the Convention, if the Reform Treaty comes into force.

A dangerous approach

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The main thrust of the Commission's communication on terrorism [Stepping up the fight against terrorism, COM (2007) 649] and the proposed Framework Decision is that terrorists are "exploiting the great potential of communications technologies such as the internet and mobile telephony for their own malicious purposes' and creating "virtual training camps".

It is a moot point that previous attempts to control use of the internet have failed and appear doomed to continue to fail; a new offence of "public provocation" goes far beyond such activities by potentially criminalising people for expressing their beliefs. As such, this proposal could even be counter-productive, radicalising others who share those beliefs and increasing rather than decreasing the number of violent terrorists in the EU.

Background: 2002 Framework Decision on combating terrorism