This post provides a bird’s-eye-view of some of the restrictive provisions in the Anti-terrorism legislations of ten western countries. It is extracted from two sources.
The first eight – i.e., the laws of Australia, Spain, France, Germany, Italy, Norway, Sweden, Canada and USA – are extracted from an illustrative (not exhaustive) study, titled ‘Counter-Terrorism Legislation and Practice: A Survey of Selected Countries’ of United Kingdom(UK) Foreign and Commonwealth Affairs.
The tenth, that is the case of United Kingdom, is an extract from that country’s known news outlet the Guardian.
The Australian Criminal Code Act 1995 (the Criminal Code), as amended by the Security Legislation Amendment (Terrorism) Act 2002, defines a terrorist act as:
an action or threat of action that causes serious physical harm or death to a person, or endangers a person’s life or involves serious risk to public health or safety, serious damage to property or serious interference with essential electronic systems; and
the action is done or threat is made with the intention of advancing a political, religious or ideological cause and to coerce or influence by intimidation an Australian or foreign government or intimidate the public or a section of the public.
Since 2002, the Australian Government has introduced comprehensive terrorism laws. It is an offence to commit a terrorist act, be a member of a terrorist organisation, provide or receive training connected with terrorist acts, associate with a terrorist organisation, support or plan a terrorist act, and receive funds from or make funds available, to a terrorist organisation. All offences attract substantial penalties, some of them up to life imprisonment.
The Criminal Code defines a “terrorist organisation” as an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs) or an organisation that is specified by the regulations. Before an organisation is specified in the Regulations the Attorney-General must be satisfied on reasonable grounds that the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur).
Spain does not have specific anti-terrorism laws. The general approach is to treat terrorism as an aggravated form of crime. Terrorism-related offences are set out in the Penal Code and procedural provisions in the Law of Criminal Procedure. The Penal Code states that an act constitutes a terrorist offence where the purpose of the act is to subvert the constitutional order or to effect serious disturbances of public order.
After the 11 March 2004 terrorist attacks in Madrid, legislative changes largely focussed on greater controls on the use and transportation of explosives. Since the attacks, the crime of conspiracy to commit acts of terror has been used to charge suspects whose planning was disrupted before an attack could be carried out. Offences of financing terrorism and glorifying terrorism (Penal Code, Art 571- 580) have also been used to disrupt terrorist support networks.
In terrorist cases, the judge may order that suspects be held incommunicado if they have grounds to believe that knowledge of the suspect’s detention would prejudice the investigation. This involves a limitation of detainees’ rights in two ways: relatives may not be informed of the detention, and legal assistance is provided by a duty solicitor, not a lawyer of their own choice. All other rights, including habeas corpus, continue to apply. The initial incommunicado order is valid for 72 hours following arrest. It can be prolonged for a further two days upon the authority of the investigating magistrate. After this period the investigating magistrate must decide whether to commence criminal proceedings. If so, the investigative magistrate may order preventive detention, at which point the suspect is transferred from police custody to judicial custody (prison). At this point, he may extend the incommunicado period by five days, exceptionally followed by a final period of three days. Thus, it is possible for a person against whom criminal proceedings have begun to be held incommunicado for up to 13 days.
While the detainee is held incommunicado in police custody, he may be questioned in the presence of the duty solicitor (not a lawyer of his own choosing), who is called in immediately on arrest. The lawyer may advise their client on procedural matters, but may not consult privately with the suspect. A forensic doctor examines the detainee to ensure that they are not physically mistreated and sends a report to the judge. Within the incommunicado period of detention, the suspect is transferred to the judge at the National High Court who has three days in which to hold a judicial interrogation. If the judge thinks there is a case for prosecution, criminal proceedings begin and the suspect is transferred to judicial custody; if not, the detainee is released. The judge must issue a reasoned judgement justifying his decision to begin criminal proceedings and any extension of the incommunicado period. Once in judicial custody, the detainee has the right to be seen by a second court-appointed forensic doctor and continued legal assistance. He may only have access to a lawyer of his own choosing once the incommunicado period has ended.
When a person has been charged and held in judicial custody, the period of preventative detention may last two years if the penalty for the offence is imprisonment of three years or more. Where circumstances exist that mean that the matter may not be tried within two years, the court may order one extension of up to a further two years. If the defendant is convicted and the sentence is under appeal, the period of custody may be extended for up to half of the sentence imposed. In practice, therefore, investigating magistrates have up to four years during which they can keep a terrorist suspect in detention and prepare the case for trial, although the defendant must be tried within the four year period.
Where an offence is committed that has a terrorist purpose then this will be considered an aggravating feature by the court when it imposes a sentence. However, there are some specific penalties in the Criminal Code that relate to terrorism, including:
promoting or directing armed gangs or terrorist organisations: eight to fourteen years imprisonment;
membership of an armed gang or terrorist organisation: six to twelve years imprisonment;
terrorist murder: twenty to thirty years;
the effective maximum prison sentence for a person convicted of two or more terrorist offences is now 40 years.
Acts of terrorism are a criminal offence and are set out in Articles 421-1 et seq. of the Penal Code (as amended in Law 96-647 of 22 July 1996). The offences which constitute acts of terrorism are those which are committed intentionally and undertaken by an individual or collective with the purpose of seriously disturbing the public order through intimidation or terror by means of:
willful attacks on life, willful attacks on the physical integrity of persons, abduction, hijacking of planes or vessels, theft, extortion, destruction, defacement and damage, and also computer offences;
the production or keeping or sale or transport of machines, dangerous or explosive devices or substances;
the detention, carrying and transport of weapons and ammunition; • offences related to the prohibition of the designing, production, keeping, stocking, purchase or sale of biological or toxin-based weapons;
financing a terrorist organisation;
introduction into the environment of any substance liable to imperil human or animal health or the natural environment with the aim of seriously disturbing public order through intimidation or terror;
money laundering or insider trading relating to terrorist activities;
being unable to account for resources corresponding to one’s lifestyle when habitually in close contact with a person or persons who engage in terrorist activities.
Under the Criminal Code of Procedure many of the same rules apply to terrorist cases as to other criminal cases. For example the time limits for pre-trial detention for terrorist offences (other than certain conspiracy offences) are the same as for other serious offences: up to 2 years pre-trial detention for crimes punishable by 10 years imprisonment or less and up to 4 years detention for crimes punishable by more than 10 years imprisonment.
Exceptions for terrorist offences are made under the Code of Criminal Procedure in relation to initial custody, pre-trial detention for certain conspiracy cases, searches and the limitation period. It is possible, for example, to extend initial custody time limits to those being questioned in relation to a terrorist act. The normal custody period of 48 hours can be extended by two further periods of 24 hours. The extensions must be necessary for the purposes of the enquiries and must be authorised by a judge. The person held in custody may only speak with a lawyer after 72 hours. The lawyer may not make known that such a meeting took place to any third party throughout the duration of the custody. This obligation is not limited to the derogation relating to matters of terrorism and has already given rise to criminal sanctions for lawyers who have breached this provision.
Under the Law of Association (Vereinsgesetz), the government can ban organisations that promote illegality or undermine the constitution. Religious organisations were exempted from this law, but in one of the first measures introduced after 11 September attacks this “religious privilege” was removed. In the recent past, six organisations and corporations (Hizb-ut-Tahrir, Al Aqsr, Yeni Aqit, Kalifatstaat, E. Xani Presse- und Verlags-GmbH and Yatim Kinderhilfe) have been banned from operating under domestic legislation for promoting extremist views, violence, anti-semitism or sedition. The banning orders cite either written material produced by the groups or speeches by their leaders as evidence of their breach of the law. Membership of the group does not amount to a criminal offence, but all activities, fund-raising, meetings etc. are covered by the ban and may under certain circumstances become a criminal offence. Representative offices are closed and accounts frozen. Those organisations banned under the Law of Association have the right of appeal to the courts. To date, no appeal has been successful.
The definition of terrorism in Article 270 bis of the Italian Penal Code has been widened by Law 155/2005, which came into force on 2 August 2005, and includes promoting, constituting, organising, managing or financing organisations which intend to carry out violent activities, or assisting any individual (excluding a close relative) who participates in such organisations. It also includes enrolling or training individuals to carry out violent activities if, in view of their nature or context, such activities might cause grave harm to a country or international organisation, and are intended to intimidate the population or to constrain the powers of the state or international organisations to carry out or not carry out any activity, or to destabilise or destroy fundamental political, constitutional, economic and social structures of a country or of an international organisation. This includes foreign states and international organisations or institutions. This definition is in addition to other acts defined as terrorism or as carried out for terrorist purposes in international conventions or laws to which Italy is bound.
Law 438 of 15 December 2001, on Urgent Measures Against International Terrorism, extended the provisions of Art. 270 of the Penal Code to cover international terrorism. Art. 270 bis provides for a term of imprisonment of between 7 to 15 years for individuals found to promote, constitute, organise, lead or finance organisations which promote violence for terrorist ends or to upset the democratic order. It also provides for imprisonment of 5 to 10 years for individuals who associate with such organisations. Art. 270 tris provides for imprisonment for up to 4 years for those harbouring or assisting terrorists, with the exception of close relatives.
Law 438/2001 and Law 155/2005 give the police and other investigating authorities increased powers to pursue terrorists. These permit, for example, the authorities to make use of false identities or receipt of money or drugs, subject to safeguards. They also allow the interception of communications by law enforcement agencies where necessary to gain information for the prevention of terrorism. The maximum period of interception permitted by the Procurator is 40 days, which may then be extended for further 20-day periods. There must be clear justification of the need, and the information so acquired can be used only for investigative purposes, not in criminal proceedings.
In June 2002 Norway amended the Penal Code with a view to establishing effective legislative measures against acts of terrorism and the financing of such acts. The amended section 147a now defines terrorism as a criminal act committed with the intention of:
seriously disrupting a function of vital importance to society, such as legislative, executive or judicial authority, power supply, safe supply of food or water, the bank or monetary system or emergency medical services or disease control;
seriously intimidating a population; or
unduly compelling public authorities or an intergovernmental organisation to perform, tolerate or abstain from performing any act of crucial importance for the country or organisation, or for another country or another intergovernmental organisation.
The amended Penal Code sets out that terrorist acts are criminal and are punishable by a term of imprisonment not exceeding 21 years and imposes a maximum sentence of 12 years imprisonment for those who intend to commit acts of terrorism, co-conspirators and accomplices. The Penal Code also makes it a serious criminal offence, punishable by up to 10 years imprisonment, to directly or indirectly finance terrorist acts or make funds available for such financing. Once again, accomplices are liable to severe penalty.
On 5 August 2005 new laws on police methods to prevent serious organised crime and terrorism came into force. These include provisions for police surveillance (including electronic and technical measures) of individuals if there are good grounds for believing a particularly serious crime is being prepared (including a terrorist act). A court must approve any such surveillance; the hearings are closed and a security-cleared defence lawyer will be appointed. The defence lawyers are not informed of their client’s name or names.
The 2003 Act on Criminal Responsibility for Terrorist Offences states that a list of offences under Swedish law including murder, manslaughter, gross assault, kidnapping, the spreading of poison or contagious substances amount to a terrorist offence where the act in question might seriously damage a state or an intergovernmental organisation and the intent of the act is to:
seriously intimidate a population or a group of population;
unduly compel a public authority or an intergovernmental organisation to perform an act or abstain from acting;
seriously destabilise or destroy fundamental political, constitutional, economic or social structures in a state or in an intergovernmental organisation.
If it is not possible to prove special intent, regular criminal law in the Penal Code is applicable. Any attempt, preparation or conspiracy to commit a terrorist offence or failure to disclose such an offence is also deemed an offence under this Act.
The Criminal Code, as amended by the Anti Terrorism Act 2001 (ATA), defines terrorism as an action that takes place either within or outside of Canada which is an offence under the United Nations (UN) Conventions and Protocols; or is committed or threatened for political, religious or ideological purposes and intended to intimidate the public or compel a government to do or refrain from doing an act by killing, seriously harming or endangering a person, causing substantial property damage that is likely to seriously harm people or by interfering with or disrupting an essential service, facility or system. Under the ATA, a terrorist group is defined as an entity that has as one of its purposes or activities the facilitating or carrying out of terrorist activity or that is an entity set out in a list established by regulation. Being on the list does not itself constitute a criminal offence, although it can lead to criminal consequences. Where offences are charged, each of the elements would have to be proved beyond a reasonable doubt. The list supports the application of other provisions in the Act including: terrorism offences; crimes relating to the financing of terrorism; requirements to freeze terrorist property and procedures for the courts to order seizure and forfeiture of that property; and the removal or denial of the charitable status of organisations that engage in or support terrorism.
In respect of incitement or fomenting terrorism, the Criminal Code contains provisions on incitement to hatred but these have not been used in the counterterrorism context as yet.
The primary domestic legislation is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, known as the USA PATRIOT Act 2001. This Act defines “terrorism” as activities that:
involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;
appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping.
These activities qualify as international or domestic terrorism according to whether they occur primarily outside or within the territorial jurisdiction of the US.
The Act defines “terrorist organisation” as a group designated under the Immigration and Nationality Act or by the Secretary of State as a group of two or more individuals, whether related or not, which engages in terrorist-related activities (this includes providing material support to terrorists or soliciting funds for terrorist organisations).
The USA PATRIOT Act updated the US Penal Code in regards to terrorism and set new penalties on those who commit and support terrorist operations, both at home and abroad.
Further, it is worth noting that the First Amendment does not protect free speech where it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action (Brandenburg v Ohio Supreme Court 1969, reaffirmed in NAACP v. Claiborne Hardware Co 1982).
X. UNITED KINGDOM (UK)
The UK has a long history of terrorism legislation, first introduced in the 1970s to combat political violence in Northern Ireland. Such legislation has invariably been presented as temporary and – with the exception of the Terrorism Act 2000 – as an emergency measure, in response to particular or anticipated events. However, much of it has remained on the statute book.
– Terrorism Act 2000: widens the definition of terrorism to apply to domestic terrorism and include any "political, religious or ideological" cause that uses or threatens violence against people or property; creates new offences of inciting terrorism; enhances police powers, including stop and search and pre-charge detention for seven days; outlaws terrorist groups, including al-Qaeda.
– Anti-Terrorism, Crime and Security Act 2001: initially enabled the home secretary to indefinitely detain, without charge or trial, foreign nationals who are suspected of terrorism – a system now replaced with control orders after the House of Lords ruling in A and Others; extends executive powers over freezing bank accounts and assets of suspected terrorists.
– Prevention of Terrorism Act 2005: introduces control orders, which allow the government to restrict the activities of individuals it suspects of "involvement in terrorist-related activity", but for whom there is not sufficient evidence to charge.
– Terrorism Act 2006: extends the pre-charge detention period from 14 to 28 days (the Criminal Justice Act 2003 had increased it from seven to 14 days); introduces a prohibition on the "glorification" of terrorism.
– Counter-Terrorism Act 2008: enables post-charge questioning of terrorist suspects; allows constables to take fingerprints and DNA samples from individuals subject to control orders; amends the definition of terrorism by inserting a racial cause.