Proposition 51K0258

Projet de loi relatif aux infractions terroristes.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

Oct. 6, 2003

Official page

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Status

Adopted

Requirement

Simple

Subjects

European Council European Union criminal law terrorism

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Discussion ¶

Nov. 13, 2003 | Plenary session (Chamber of representatives)

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On 13 June 2002, the Council of the European Union adopted a Framework Decision on combating terrorism. The bill proposed today aims to translate that binding framework decision into national legislation. There was no option for a special criminal legislation, but for an insert in Book II of the Criminal Code by means of a title Iter, which includes Articles 137 to 141ter. As new concepts, the terms "terrorist crime" and "terrorist group" are introduced. The basic idea is that it is a crime — I quote: "that by its nature or context can seriously harm a country or an international organization and is committed intentionally with the intention of causing serious fear to a population or illegally forcing the government or an international organization to commit or refrain from an act, or seriously disrupt or destroy the political, constitutional, economic or social basic structures of a country or an international organization."

During the general discussion, several Commissioners expressed concern that the continued respect for fundamental rights and freedoms should not be compromised. The draft law addresses that concern and in Article 9, which introduces an article 141ter, expressly refers to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The committee also held a standstill on the possibility of using regret optants, with a reference to the possibility provided by Article 6 of the Framework Decision to reduce penalties for perpetrators. It raised some ethical concerns and also highlighted the difficulties facing the countries with a regret-optant system at the moment. The amendment was not adopted by the committee.

For the rest, I refer to my written report. You will be able to see that the amended bill was unanimously approved.

I have to congratulate Mr. Muls on his report and on his maiden speech. Bravo to you, Mr Muls.

As speakers for the general discussion I have registered: the colleagues Van Parys, Maingain, and Perpète. I will follow that order.

Mr. Speaker, Mrs. Deputy Prime Minister and Minister of Justice, colleagues, I will be brief.

As outlined in the excellent report of our colleague reporter, this is about transposing the Framework Decision of the Council of the European Union of 13 June 2002 on combating terrorism. Our group is positive about the draft law, as it contributes to the joint action of the Member States of the European Union in the fight against terrorism. I believe that there is no need to argue that a common approach, at least within the European Union, is absolutely necessary in order to effectively combat terrorism. Indeed, it seems to me very clear that European police and judicial cooperation is essential to address this struggle effectively and efficiently. I think of initiatives such as Europol at the police level and Eurojust on judicial cooperation.

The framework decision and the draft law are intended to harmonise the legislation of the different Member States of the European Union on counter-terrorism. I think this is an absolute prerequisite for concretizing this cooperation. We need to harmonize the criminal offences. We need to harmonise the penalties in the fight against terrorism, as well as the fight against organized crime and drug trafficking. It is undoubted that a common definition of what is a terrorist crime and what is a terrorist group is the basis for a common action. If we talk about the same thing, if we use the same concepts, we will indeed be able to work together concretely in the field. Therefore, our group stands positively towards the bill.

However, there is one shortcoming in the draft that we deeply regret. This discrepancy consists in the fact that a certain article of the Council Decision is not transposed into the draft law, in particular Article 6, which recommends that Member States provide for reduction of penalties if the perpetrator ceases to engage in terrorist activities or if the perpetrator provides information that should enable the identification of other perpetrators. It seems to be an obvious recommendation from the European Union to say that an offender who cooperates and provides information so that other crimes can be detected and who commits to cease those activities receives a reward, in this case the reduction of the penalty. It is an obvious recommendation, which, however, is not included in the draft law. We regret this in particular because everyone who follows this matter closely knows that the instrument of remuneration of the court staff is an essential element in the very difficult evidence gathering that exists in terms of fighting terrorism and organized crime.

Do not misunderstand me. The recommendation in the Framework Decision concerning the reduction of penalties has in fact nothing to do with a regret-optant scheme. A regret-optant scheme goes much further and stipulates, for example, that there will be no prosecution if one cooperates. Here it is just about the fact that whoever gives his cooperation and provides information so that other crimes can be resolved, can receive reduction of punishment. That is the logic self, the common sense, the evidence for all who are engaged in this matter. What are we fixing? The government has failed to include this in the bill, despite the explicit recommendation in the European Union Framework Decision. In this way, we deprive ourselves of an important tool for obtaining useful, important information in the context of combating terrorism.

We have, together with the CD&V group, submitted an amendment to incorporate that recommendation of the European Union into our Belgian legislation. In this way, our courts can effectively give a reduction in punishment at the moment that someone cooperates with an investigation, at the moment that someone provides information that allows other crimes to be identified. In fact, this amendment would not need to be discussed if it did not, for some reason in the purple majority, fail to write it down in the draft law.

I would like to expressly ask the colleagues, especially the liberal colleagues of the MR and the VLD, to approve the amendment, among other things because it is fully in line with, for example, the bill submitted by Ms. Taelman of the VLD, which explicitly identically proposes the same; in particular, reduction of penalties in case of cooperation in the investigation. I think that a logical attitude towards the own bill presupposes that one would also approve this amendment. I hope that we will be able to complete this bill in this way.

It is a good draft law, we will also approve it, but it must be supplemented by the obvious recommendation — that of common sense — as also recorded in Article 6 of the Framework Decision.

Finally, I would like to point out that a number of important conventions on the fight against terrorism have not been ratified, including six counter-terrorism conventions and United Nations Protocols, as well as — and I regret that in particular — the Convention on Mutual Legal Assistance in Criminal Matters. This is a very important tool to enable joint action in the fight against organized crime and terrorism. The convention dates from 29 May 2000 and is still not ratified today, at the end of 2003. I would like to strongly urge you to ratify these treaties or at least include the initiative.

Mr Van Parys, you probably also defended the amendment you submitted with colleague Bourgeois, right?

Mr. Speaker, Mrs. Deputy Prime Minister, dear colleagues, the bill that is submitted to us aims to meet the international obligations of Belgium. The Framework Decision of the Council of the European Union on the fight against terrorism coupled with the Framework Decision on the European arrest warrant is one of the results of the Belgian Presidency of the European Union. We are delighted with this. Harmonization of criminal legislation at European level is a step to be taken to fight impunity more effectively in the European Union. Some countries already specifically refer to terrorism in their criminal law, others do not. Among the countries that incriminate terrorism, one can quote Germany, which has experienced a specific incrimination in its Criminal Code since 1976. Italy and Spain followed this example. The United Kingdom, on the other hand, has incriminated terrorism related to the affairs of Northern Ireland alone. In 1986, France introduced a criminal procedure system specific to the prosecution and repression of acts of terrorism. In 1992, new articles were introduced into the French Criminal Code to strengthen the repression of terrorist acts. The Netherlands, like us, would by no means have until now incriminated acts of terrorism. by

These findings demonstrate the importance and progress made by the transposition of the EU Framework Decision. The draft law aims to strengthen our criminal code. As Professor Masset of the University of Liège points out, there were already in our annexed legislation attempts to define terrorism without making it an offence itself. The law of 2 September 1985 approving the European Convention for the Suppression of Terrorism. However, neither this convention nor Belgian law defines terrorism. Furthermore, this convention and the ratification law aim more to regulate extradition than to suppress terrorism. by

Similarly, the Belgian law of 11 January 1993 on the prevention of the use of the financial system for the purposes of money laundering speaks of the origin of capital that could come from the commission of a terrorist offence but does not define its content. It is for this law that the government has just filed a draft amending law aiming to also extend its provisions to capital used for the financing of terrorism. The Act of 21 June 2001 amending certain provisions concerning the Federal Prosecutor’s Office introduced an article 144ter in the Judicial Code which designates terrorism without express reference to it. by

Despite the fact that our criminal law does not specifically criminalize terrorism, so far we have classic incriminations that allow us to repress acts of terrorism, such as criminal association or criminal association. However, given the current international context, it seems necessary that such a notion and such incrimination of a specific terrorist offence appear in our criminal arsenal and that the Framework Decision can enable a European harmonisation of the concept and repression of terrorism.

Specifically, as regards the text of the bill, we welcome the fact that the State Council’s opinion was largely followed in the drafting of the bill. At the reading of the bill, we have paid special attention to respect for fundamental rights and freedoms that cannot in any way be reduced or hindered.

Unlike other members of the committee, we believe that it is necessary to remind in the bill that the law cannot be applied to behaviors that can in no way be qualified as terrorists. Furthermore, we consider that the preservation of fundamental freedoms concerns the whole draft law, the whole of these provisions, and that for this purpose a specific provision should be inserted that aims to, what I called in a committee, bring the judicial authorities to make the correct balance between the prosecution of terrorist crimes and respect for fundamental freedoms. Therefore, together with other co-authors, I was able to submit in a committee an amendment aimed at introducing an article 141b in the title of the Criminal Code relating to terrorist offenses. Nothing in this Title of the Act under consideration may be interpreted as aiming to reduce or hinder fundamental rights and freedoms such as the right to strike, the freedom of assembly, association or expression, including the right to found trade unions with others and to join them for the defense of their interests and the right to demonstrate related to them, as enshrined in Articles 8 to 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

This amendment adopted by the Justice Committee reminds the judge, as I said, in the face of the very broad terms used to define the terrorist offence, that in the weighing of the values he must carry out, between the will to pursue serious acts and the preservation of fundamental freedoms, he can in no way ignore the importance of the latter. The reminder of these fundamental rights and freedoms is therefore not an unnecessary reminder, as some have suggested.

Because we have had the government’s consent on this amendment, which joins for a large part the text deposited by the government, we have thus been able to mark our agreement on the scope of this bill and the MR group will vote on it without reservation.

Mr. Speaker, Mrs. Vice-Prime Minister, dear colleagues, I will briefly speak, on behalf of the PS Group, in the debate on the draft on terrorist offences submitted to us by the Government.

I will not go back into the technical nature of the project because we consider in this regard that the path chosen by the government is the right one. Since criminal law does not currently provide for specific provisions on terrorism, the inclusion of the concepts of terrorist offences and terrorist groups in our Criminal Code is fully justified.

Another point that is worth emphasizing is that this project aims to bring our right in line with the United Nations Convention for the Suppression of Terrorist Financing. I will make little further considerations on the arrangement itself, the work in the Justice Committee has long debated about it and I think I can say that there is a broad consensus on this matter.

I would like to now address the context of this project because no one can forget the trauma caused throughout the world, and more ⁇ even in the Western world, by the events of September 11, 2001. Obviously, the specific incrimination in question is fully justified to materialize the will of democratic states to combat without mercy certain acts that can be called barbaric. It should also be emphasized that this matter has been the subject of a decision of the Council of the European Union on the fight against terrorism, and this is also one of the major achievements of the Belgian Presidency, which we must now transpose without delay into our internal legal order.

It is in this very binding context that the text submitted to us must be understood.

Furthermore, the PS insists on the need to ensure that the successive legislation that Belgium is preparing to adopt to combat the terrorist phenomenon does not affect the fundamental rights and freedoms of citizens.

The balance – the word regularly pronounced in committees – between respect for privacy and individual rights, on the one hand, and efficiency, on the other hand, remains precarious. If, at the present stage, the desired balance seems to be achieved, it will be necessary to focus on making it concrete in daily practice and to ensure that it is ⁇ ined in time.

In this context, I, together with other colleagues, submitted an amendment to clarify that the preservation of fundamental freedoms concerns all the provisions of the bill.

In the interest of protecting individual freedoms and avoiding the misuse of the new law, we think it was reasonable to strongly remind that this text can in no way lead to reducing or obstructing fundamental freedoms and rights.

We welcome the affirmed political will to combat this ⁇ serious form of crime. Recent news has also made it clear that a small country like ours is not escaping this form of crime in rapid development and that it could become, if we do not take care of it, a turntable or a backbone for various criminal activities.

Furthermore, this concern for harmonisation must be encouraged in so far as this harmonisation can only improve the effectiveness of the fight against networks, one of the essential characteristics of which is precisely that they are deployed in different countries.

The new incrimination envisaged by the project will enable a coherent policy of police and judicial cooperation, based on common criteria and defined in a very precise manner. Until now, the essential international cooperation in this area has often been slowed down and sometimes even blocked, made impossible due to the lack of common criteria.

Finally, I would like to reaffirm with firmness the position of the PS Group regarding the will of some, - and again evoked at the moment by Mr. Van Parys – to introduce a measure concerning repentance.

First of all, we consider that such favourable treatment for the benefit of criminals is deeply immoral and risks developing a society of delusion, without neglecting the risks of manipulation and account settlement.

It should also be recalled that, already during the previous legislature, the Parliament has adopted a series of measures such as provisions on anonymous witnesses, threatened witnesses, audio-visual means that already enable the effective fight against this type of crime.

Furthermore, contrary to what has sometimes been said in committee, doctrine and practitioners are not all in favor of such measures. Recently, in an article in the newspaper "Le Soir", the investigation judge Vandermeersch recalled, - to reiterate his words -, "his fear of pollution of the judicial system by the deposit and the influx of many unreliable information". In this regard, we can refer to the initiative, ⁇ unhappy, taken by an inquiry judge in a famous case currently ongoing, in which the fact of opening up the path of delation has led to more difficulties than concrete results and has put investigators in the practical impossibility of focusing on the safest paths.

In short, according to the Socialist Group, when a new measure is proposed, it is necessary to balance its alleged effectiveness and the very real risk of attacking the fundamental rights of individuals. Now, as regards specifically the establishment of a regime of favor for repentants, it seems to us that the point of balance would not be met.

Finally, in this matter, we must not lose sight of the fact that the balance sheet of countries that have adopted such legislation, and in particular Italy, is far from satisfying.

In conclusion, Mr. Speaker, Mrs. Deputy Prime Minister, dear colleagues, the Socialist Group unambiguously supports the fight against terrorism and therefore the bill that is submitted to us but we believe that it can only be effectively carried out if, in parallel, we also develop an openness to other cultures and a policy of reduction of inequalities.

Mr. Speaker, this project, which aims to strengthen our legislative arsenal in the field of counter-terrorism, is very important, as all members of the Justice Committee and, even today, all stakeholders have emphasized.

Given the importance of this project, I will not at all take advantage of this tribune to return to the content of the bill itself: for this, I refer to the excellent report of Mr. and Muls. Per ⁇ I will develop some more general considerations. Mijn betoog zal betrekking hebben op de drie hoofdlijnen die het essentiel politieke patroon vormen dat men in overweging moet nemen in het kader van dit ontwerp van wet. I am of three main lines op.

First, the global context within which repressive action in the field of international counterterrorism must take place

Second, the need for Belgium to join the international cooperation on this control

Ten third, de absolute noodzaak rekening te houden met de grens die getrokken moet worden tussen repression van terrorism en de bescherming van de fundamentele principles en rechten die door eleven democratische maatschappijen erkend zijn. Let us take the overall context. As underlined in the resolution adopted on 10 October last year, at the conclusion of the 25th Conference of Ministers of Justice of the Member States of the Council of Europe dedicated to the fight against terrorism, it is necessary to be aware that concerted international action is essential to succeed in the fight against the plague of terrorism and that such action must, where possible, aim to prevent or remedy situations that may fuel terrorism. In fact, it cannot be a question of ending terrorism by only repressive action. by

New rules of international law invite us to considerably expand our criminal legislative arsenal. But, in such a serious matter, such a reinforcement of the repressive action against the plague of terrorism, in order to regain the expression consecrated by the Council of Europe, can only be accepted if, in addition, the international community endeavors to fight against the political root of this plague. Here we must think of the many civil conflicts that promote the emergence of the terrorist phenomenon. It is in this context that the government continues to advocate for Belgium to join in a voluntary action aimed at, internationally, to push the international community on the path of peaceful solutions to acute crises that shake different corners of the planet such as, for example, the conflict in the Middle East and the question of the Palestinian State.

In conclusion of this point, it would seem to me neither acceptable nor responsible to address the evil that terrorism constitutes with very intrusive repressive tools, as provided for in the emerging new anti-terrorism law, without otherwise addressing the political roots of the evil, that is, without ensuring to prevent or remedy those situations of serious destabilization which, increasingly, endanger the very notion of the rule of law in increasingly wider areas. In de tweede hoofdlijn van mijn intervention wil ik het volgende zeggen. It is indispensable that Belgium is joined by international community commitment with international community commitment with international community commitment with international community commitment with international community commitment with international community commitment with international community commitment with international community commitment with international community commitment. This goes through two aanvullende actions.

On the one hand, both in our criminal law and in the extraterritorial rules of jurisdiction of our courts, the legal provisions that are indispensable to fight terrorism effectively must be introduced. It is therefore not only about the fight against the actual terrorist acts, but also about their primary material source, with which I mean the fight against the financing of terrorism. In order to answer the first part of that question, the bill, as proposed to you by the rapporteur, introduces a new title of the Criminal Code, entitled “On terrorist crimes”. As underlined in the report, that title will introduce seven new articles in the Criminal Code, Articles 137 to 141ter, which will simultaneously allow Belgium to align its legislation with its international obligations arising from the Framework Decision of the Council of the European Union on counter-terrorism, but also to align it with one of the key parts of international counter-terrorism at global level, in particular the International Convention on Combating the Financing of Terrorism, adopted in New York in 1999 and signed by Belgium on 27 September 2001.

The last purpose is, among other things, achieved through the draft of the new article 140 of the Criminal Code. I take advantage of this intervention to emphasize that the amendment submitted by Mr. Van Parys et Bourgeois has already been the subject of a debate in the Justice Committee. I also feel that this is not the last time we will hold this debate. This is also what was held at the time of the examination of the amendment on repentance. I recall that at the European level, it was held that it was optional to resume, in domestic laws, as a means of fighting terrorism, the path of aid to repentants.

I repeat, we will have the opportunity to discuss this issue again. I agree with all the arguments put forward by Mr. Perpetually I support.

We will have the opportunity, when this case returns to the Justice Commission, to see what is happening in foreign states that have been very far in the matter. I think, for example, of Germany and Italy where, evidently, we are witnessing a step backwards, given the perverse effects of premiums for delay and the difficulties for the judiciary to effectively handle those premiums for delay which, as I said, completely disrupt the scheme of serene and effective evidence search.

Therefore, I ask that these amendments are not taken into account. But as I said in the committee, I am quite willing to have, during this legislature, a comprehensive debate on this subject, during which all arguments can be exchanged and what is currently happening in other European countries can be examined.

Mr. Speaker, dear colleagues, I have already pointed out that a first step in Belgium’s international action is to adapt its criminal law to the new international repressive rules. The second aspect of this action will be for Belgium to ratify international treaties organising better cooperation in the fight against terrorism. by Mr. Van Parys also spoke about this.

I add that the International Convention for the Suppression of the Financing of Terrorism is, for the time being, the subject of a preliminary draft law of consent, which is currently subject to the opinion of the State Council. There are five other conventions and protocols. Most ratification documents are transmitted or are being transmitted to our administration.

As regards the European Convention on Mutual Legal Assistance in Criminal Matters, the so-called 2000 Convention, and its Protocol, the ratification file is being finalised within the SPF Justice. It has not yet been implemented at the European level. In any case, I want to be able to move forward.

I come to the third and final axis of my speech: the resolution adopted on 10 October last by the European Conference of Ministers of Justice. It reaffirms the determination of the member states of the Council of Europe to continue their struggle against all forms of terrorism, while fully respecting human rights. This is, therefore, an essential element that the bill had to be translated explicitly.

So much Mr. As soon as Mr. Perpete intervened so that one can truly take this balance into consideration. It is true that terrorists try to destroy or weaken the rule of law. Fighting terrorists by means that undermine the very foundations of the rule of law, which are human rights, would obviously dedicate the victory of terrorism to our democratic societies. The draft law, as amended in commission, specifies in the second paragraph of the draft new article 139, that the notion of terrorist group cannot be confused with "an organization whose real object is exclusively of political, trade union, philanthropic, philosophical or religious order or which pursues exclusively any other legitimate purpose".

This type of concern has already been translated into Article 324bis of the Criminal Code defining criminal organization. I am pleased that the committee has been able to support such an inscription in the bill currently under consideration. Bovendien onderstreept het ontwerp van artikel 141ter dat van toepassing is op het geheel van de nieuwe titel 1ter van het Strafwetboek dat geen enkele bepaling van dat wetboek mag worden interpreted as bedoeld om de fundamentele rechten op vrijheden te beperken of te belemmeren. This article refers explicitly in particular to the articles 8 to 11 of the European Treaty to protect the rights of men in the fundamental freedoms. Here are, Mr. Speaker, my dear colleagues, some considerations of a more general order to highlight the importance that the government attaches to these extraordinary tools of fighting terrorism, the initiative of which is the Council of the European Union and by which, through this project and others which you will be addressed soon, Belgium wants to show itself a promoter state of the defence of our democracies against terrorism, without however compromising the framework of the defence of human rights.