The Concept of Terrorist Offence

The development of a coherent set of penal measures aimed at com-bating terrorism first requires the definition of the scope of offences that they will tackle. This task was assigned to Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (hereinafter: the framework decision). Unlike the conventions developed under the aus-pices of the UN, the framework decision is not confined to the problem of international terrorism, but goes further to cover all its manifestations, if only they meet the criteria specified therein.⁴³

The framework decision of 13 June 2002 imposes an obligation that the definition of terrorist offences should be approximated (paragraph 6) and names its constituent parts. According to Article 1(1) of the frame-work decision, the EU member states should take the necessary measures to ensure that the intentional acts referred to below, as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of:

– seriously intimidating a population,

– unduly compelling a Government or international organization to perform or abstain from performing any act,

43 The extension of the framework decision to both international and domestic terrorism has been viewed positively in the literature; cf. Saul, B. „International Terrorism as a European Crime: The Policy Rationale for Criminalization,” EJCCLCJ 4 (2003), p. 336.

 Framework Decision of 13 June 2002 – seriously destabilising or destroying the fundamental political, con-stitutional, economic or social structures of a country or an international organization.

The definition of the catalogue of prohibited acts contained in the re- mainder of Article 1(1) of the framework decision should be seen as a com-mitment to outlaw any of such acts in the national legislations of the EU member states. This catalogue includes:

a. attacks upon a person’s life which may cause death, b. attacks upon the physical integrity of a person, c. kidnapping or hostage-taking,

d. causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss,

e. seizure of aircraft, ships or other means of public or goods transport, f. manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons,

g. release of dangerous substances, or causing fires, floods or explo-sions the effect of which is to endanger human life,

h. interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger hu-man life,

i. threatening to commit any of the acts listed in (a) to (h).

The above definition of a terrorist offence highlights three constitutive elements that should occur concurrently. Two of them are of an objective nature (refer to the deed) and one of a subjective nature (refer to the doer).

The basic requirement is to establish that the offender’s conduct meets the criteria of one of the acts listed in Article 1(1)(a-i) of the framework decision. This catalogue draws heavily on the UN acquis. The literature on the subject proposes a view that this collection of offences bears the mark of the legacy of the twelve international conventions on terrorism.⁴⁴ However, while the descriptions of offences contained in international agreements agreed under the auspices of the UN were associated with a given “sector” of terrorist activity, or supplemented with additional cir-cumstances of the time, place and manner in which they were committed,

44 Dumitriu, E. „The E.U.’s Definition of Terrorism: The Council Framework Decision on Combating Terrorism,” GLJ 5 (2004), p. 593.

110

The Approach of the Council of Europe and the European Union  

the provision of Article 1(1) of the framework decision offers a synthetic approach.

The provision of Article 1(1)(c) of the framework decision requiring the recognition of kidnapping or hostage taking as an offence corresponds to the content of the provision of Article 1 of the New York Convention (II), although it is worded more concisely. Given special circumstances, such an act may fall under other international agreements, such as the New York Convention (I), when the victim is a person under international protection, and the New York Convention (III), if the offence affects any members of the UN or associated personnel.

Referred to in Article 1(1)(d) of the framework decision, the conduct leading to extensive destruction likely to endanger human life or result in major economic loss can be likened to the description of the crime under Article 2(1) of the New York Convention (IV). It is not required, however, for this extensive destruction to eventuate from the use of explosives or other lethal devices.

The act mentioned in Article 1(1)(e) of the framework decision involv-ing the seizure of a means of transport corresponds to the convention provisions concerning the civil aviation and maritime security. Its scope, however, is broader, since it covers attacks directed against any means of transport, including those of land transport. The content of Article 1(1) of the framework decision makes references to the prohibitions of Article 7(1) of the Vienna Convention, and Article 1(1)(g) of the framework deci-sion to those terms and conditions of international agreements that define the offences exhibiting the characteristics of commonly hazardous.⁴⁵ The examples of conduct listed in point f and g also fall within the acts crimi-nalized under the New York Convention (VI) (Article 2(1)) and the Rome Convention, amended by the London Protocol (Article 3bis(1)(a)) and also in the treaties drawn up after the entry into force of the framework deci-sion, of 13 June 2002

Acts that involve interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life (Article 1(1)(h) of the framework decision) are absent from the existing sectoral conventions. This does not mean, however, that their inclusion in the framework decision should be considered a novelty.

Similar descriptions of behaviour considered to be acts of terrorism date

45 Cf. Article 1(1) of the Hague Convention, Article 7(1) of the Vienna Convention, Article 3(1) of the Rome Convention, Article 2 of the Rome Protocol, Article 2(1) of the New York Con-vention (IV).

 Framework Decision of 13 June 2002 back to the interwar period, and occurred, for example, in the final docu-ment of the Brussels conference on the unification of criminal law (1930).

In addition, the threatening to commit any of the acts listed in Article 1(1)(a-h) was deemed terrorist offence (Article 1(1)(i) of the framework decision). This solution is also found in other international agreements.⁴⁶

The Explanatory Memorandum attached to the draft framework deci-sion recognized the acts committed in connection with a terrorist activity as inherently ordinary offences.⁴⁷ Their terrorist nature can be ascertained if they meet two additional criteria. The first one follows from the clause imposing the requirement that “given their nature or context,” the of- fender’s acts “may seriously damage a country or an international organi-sation.” The wording of this provision clearly indicates that these effects need not actually occur, and it is sufficient to establish the existence of the danger of their occurrence.

The incorporation of such a clause into the frame corresponds to the broadly accepted argument that only those acts have the terrorist nature which – whatever the motivation of the perpetrators – are potentially ca-pable of producing a particularly adverse outcome.⁴⁸ This view is con-veyed by the principle of proportionality, which requires the relationship between two conflicting values be determined (“weighed”): on the one hand, the legal interest of the individual compromised by the measures taken (established penalties), on the other hand, the legal interest whose protection is the purpose of a state’s interference. This principle leads the legislator, by resorting to criminal punishment, to take into account the sufficiently high rank of the protected legal interest, and also determine whether the criminalized acts at least expose this legal interest to danger.⁴⁹ A clause referring to “serious damage to a country or an international or-ganisation” serves as a filter to allow the exemption beyond the scope of the concept of a terrorist offence of such conduct that formally meets the criteria of punishable acts listed in (a) to (i), and yet does not reveal, due to its nature and context, an appropriately high degree of threat to the

46 See also: Wiak, K. „Pojęcie przestępstwa terrorystycznego w prawie Unii Europejskiej,”

in: Hominum causa omne ius constitutum est. Księga jubileuszowa ku czci Profesor Alicji Grześkowiak, Dębiński, A., Gałązka, M., Hałas, R. G., Wiak, K., eds., Lublin 2006, p. 158.

47 Explanatory Memorandum, paras. 3 and 4, pp. 6-8.

48 Cf. Dumitriu, E. The E.U.’s Definition, pp. 595-596.

49 Cf. Gałązka, M. Prawo karne wobec prokreacji pozaustrojowej, Lublin 2005, p. 151, Gardocki, L. „Uproszczone formy penalizacji,” PiP 8-9 (1975), p. 68, Wojtyczek, K. Granice ingerencji usta-wodawczej w sferę praw człowieka w Konstytucji RP, Kraków 1999, p. 141.

112

The Approach of the Council of Europe and the European Union  

protected legal interests, such as the proper functioning of a state or an international organization.

The last of the component of a terrorist offence provides for the assess-ment criterion taking into account the subjective attitude of the perpetrator.

It does not, however, pertain to motivation, but is determined by the desire to accomplish one of the named goals. The failure to refer to motivation as one of the indicators of the terrorist nature of an offence results from the effort to “depoliticize” its assessment. Consequently, it helps avoid the difficulties which may arise in determining the specific political agenda pursued by the perpetrator, the ideological substratum exerting influence on his intent, or links with movements and groups resorting to violence.

The criteria related to the perpetrator’s intention were given as alterna-tives; therefore, it is sufficient to demonstrate that the offender committed an act in order to achieve one of the three goals listed in the provision. The first two criteria of seriously intimidating a population or unduly compel- ling a government or international organization to abstain from perform-ing an act are almost a verbatim repetition of the wording used in Article 2(1)(b) of the New York Convention (V). The last criterion, which requires that the offence seriously destabilize or destroy the fundamental political, constitutional, economic or social structures of a country or an interna-tional organisation, has not yet occurred in any international agreements on suppressing terrorism.

The construction of the aspects of the terrorist offence as to the doer leads to a significant reduction of the range of acts falling within the de-fined concept. The requirement of an appropriately targeted perpetrator’s conduct (taken cum dolo directo colorato) means that not all crimes identi-fied in the sectoral conventions may be qualified as terrorist offences in the light of the provisions of the framework decision. Some of the inter-national agreements, such as the Hague Convention, criminalize certain acts but omit to define any requirements as to the perpetrator’s goals. For this reason, the offence of aircraft hijacking (Article 1 of the Hague Con-vention) may be regarded as terrorist under the framework decision if the ransom was extorted from a government or international organization, or the offender at the same time sought to intimidate a population. The same act aimed at demanding ransom from the families of the people on board or from the airline is not compatible with the requirements adopted in the framework decision, although it meets the criteria of a crime as defined by the Hague Convention.⁵⁰

50 Cf. Peers, S. EU responses, p. 232.

 Framework Decision of 13 June 2002 The literature on the subject expresses certain reservations about both the style of the whole of Article 1(1) of the framework decision, as well as individual language expressions used with a view to conveying the perpetrator’s intentions. They have been reported to be complex and rais-ing questions during interpretation.⁵¹ For instance, they permit to deem the conduct of persons involved in various forms of political protests and demonstrations as terrorist offences because they may be imputed the aim of “unduly compelling a Government or international organisation to per-form or abstain from performing any act” or “seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.”⁵² The threat of abuse of the broad spectrum of the intention-based criteria included in the definition adopted in Article 1(1) of the framework decision to suppress the opposition by those wielding power should not be ruled out even in democratic societies. Yet, it seems that the normative safeguards prevent-ing such misinterpretation are sufficient. For example, the provision of Article 1(2) of the framework decision reiterates the requirement to respect fundamental rights and legal principles that govern the EU when imple-menting the obligations contained therein.⁵³ The interpretation of Article 1(1) of the framework decision in accordance with human rights standards should assure that the exercise of fundamental rights and freedoms will not be assessed by and dovetailed with the threat arising from terrorism.

4.2. Offences Related to a Terrorist Group and Offences Related to Terrorism