BREXIT and Terrorism: EU Law on Terrorism Facing the Threat of BREXIT
Ferdinando Angeletti (La Sapienza University) and Giangiuseppe Pili (Dublin City University)
UK’s exit from the European Union is still not completed: according to the procedure defined by Article 50 of the European Union Treaty (so-called Brexit) the process is not finished yet. However, it is appropriate to evaluate the legal consequences that it may generate in the near future. The legislation of the EU covers several decades with a particularly thriving normative production in the twenty-five years following the Maastricht Treaty (1992). For the United Kingdom (UK), going back then will not be an easy task. Especially, it will be a delicate process to re-define matters such as criminal law and criminal procedure. In this post, we will analyze the consequences that the UK will face in the legislation on terrorism, focusing our analysis on the European criminal and procedural laws and on judicial cooperation relations in the field of terrorism. Indeed, unless the exit agreements do not provide otherwise, the current agreements will become inapplicable.
European legislation on terrorism
EU law deals with terrorism since 9/11 and the beginning of the War on Terror. This was the first time in EU history in which terrorism is considered by the EU legal system. However, as any European legislation in the procedural or criminal fields, the EU rules strove to find an equilibrium in the national regulations, through the instrument of the directive, namely a legislative instrument not so invasive.
The dir. 2017/541/EU (so-called Terrorism directive) deals with the phenomena of foreign fighters and the financing of terrorism, in the same direction of what has been accomplished both in the UN Security Council resolutions and in the Council of Europe, with the Warsaw Convention against terrorism (2005) and its Additional Protocol of 22 October 2015.
This is in continuity with four previous sources of the Union:
(III) the dir. 2012/29/EU regarding rights, assistance and protection of victims of crime;
(IV) finally, the dir. 2015/849/EU on the prevention of terrorist financing.
The dir. 2017/541 considers what has to be understood as relevant criminal behaviour in terrorism. A tripartite division of it is provided between “terrorist crimes”, “crimes related to the terrorist group” and “crimes connected to terrorist activities”. From this division follows the procedures to be enacted by the member states.
The category including the crimes of terrorism is constructed “by listing” both behaviour (art. 3 par. 1) and purposes (art. 3 par. 2). In order to be punishable, they must cause serious damage to a country or an international organization. The threat of commission of acts is also convictable.
The second group of criminal behaviours related to terrorism, the “crimes attributable to a terrorist group”, are strictly identified. To punish this kind of crimes, the sheer possibility of economic or even merely informative threat, eventually perpetuated by the terrorist group, is sufficient to convict it.
The directive also contains specific rules to protect victims of terrorism, such as emotional and psychological support, legal, practical or financial assistance, assistance with compensation claims, access to adequate health care (art. 24, par. 5), and finally participation in the process (art. 24, par. 6, 25 dir.) which must be guaranteed immediately after the terrorist attack and as long as necessary.
The fight against terrorism includes the criminalization and attention to money laundering and, therefore, to the financing of terrorism. In October 2018, a new EU directive (Dir. 2018/1673), still to be implemented by many member states, investigated money laundering inside the European regulatory framework already developed in the field of administrative prevention (the so-called Anti-money laundering directives adopted in 2015 and May 2018).
The new text identifies at EU level – through a list of cases that includes terrorism and participation in an organized criminal group – the predicate offences of money laundering. This solution allows overcoming the problematic legal differences between the various member states, ruling that certain crimes should always be the assumption of the money laundering offence. In addition, the Directive limits the requirement of “double criminality” for certain predicate offences such as money laundering offences committed transnationally, including terrorism behaviours as defined in the Terrorism Directive.
Judicial cooperation in the field of terrorism: conclusions
The current EU system of judicial cooperation is based, essentially, on two major instruments such as the European Arrest Warrant (EAW) and the European investigation order (EIO), deriving respectively from Framework Decision 2002/584/GAI of June the 13th 2002 and Directive 2014/41/EU of April the 3rd 2014.
Under appropriate and specific conditions, those investigative and executive tools allow the EU Member States to proceed either to limiting personal freedom or pursuing investigative activities. Both of them request for collaboration provided by the judicial authorities.
In addition to specific procedures, these tools require the so-called cardinal principle labelled as “Double criminality”, i.e. the condition that certain behaviour is criminally prosecuted by the laws of both Member States. Among the exceptions to the double criminality, the behaviours considered as “terrorism” by the member states are included.
At the EAW and the EIO, the “Directive terrorism” also reiterates the need for an effective application of the freezing and confiscation measures with respect to the proceeds of terrorist offences and the capital goods used for their commission. Compared to these measures, the European Union had introduced common minimum standards with Directive 2014/42/EU.
On those bases, the European Parliament and the Council adopted a new Regulation to allow mutual recognition among the EU Member States. Before this regulation only after a conviction was possible to hit the resources of terrorist groups and organized crime across the borders of the Union. Now, for the first time, EU Member States can make confiscations in the absence of a conviction, such as preventive counterterrorism seizures already present, for example, in the Italian legislation.
Then, in the absence of an agreement on the matter, the judicial and investigative collaborations between the EU member states and Great Britain will not be able to go through the described community mechanisms. This will necessarily have to pass through specific bilateral or multilateral international agreements. At the moment, they still do not exist. They will require time and negotiations to be completed. In addition, rather complex mechanisms will be the outcome of the resolutions that will determine convoluted procedures to be activated and executed. Therefore, we expect serious difficulties.
In this regard, it will remain only the European Convention on the Suppression of Terrorism, work of the Council of Europe signed in Strasbourg on January 27th, 1977 that generically intends to facilitate the extradition of subjects. The Convention of the Council of Europe for the prevention of terrorism signed in Warsaw on May 16th 2005 will not be applied instead since Great Britain has not ever ratified it.
We hope that the long and difficult talks between the EU and UK will finally formulate reasonable solutions to these problems, which will require a departure from the economic and social differences that are marking the debate. Indeed, touching the general criminal legal system that judges the criminal world could be truly risky. Terrorism risk is a delicate matter and it should be done everything possible to avoid any lacunae and legal splits. Indeed, those weaknesses can be exploited by those who have every interest in making a non-uniform and united “legal space”.
Ferdinando Angeletti is a PhD candidate in History of Europe at La Sapienza University in Rome. He is a member of the Italian Society of Military History (SISM) and of the IASTE (Institute for Advanced Studies on Terrorism and Subversion).
Giangiuseppe Pili is a Lecturer in intelligence studies in the International Master in Security, Intelligence and Strategic Studies (IMSISS) at Dublin City University. He earned a PhD in philosophy and sciences of the mind with a thesis on individual and social epistemology. He is part of the organizational committee of the Intelligence Lab at Calabria University. He issued a monograph on the philosophy of war. He is the coauthor of the book (forthcoming, 2019) Intelligence studies with prof. Mario Caligiuri.