| The Council of European Union, Having regard to the Treaty
establishing the European Union, and in particular Article 29,
Article 31(e) and Article 34(2)(b) thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament
(2),
Whereas:
(1) The European Union is founded on the universal values of
human dignity, liberty, equality and solidarity, respect for human
rights and fundamental freedoms. It is based on the principle of
democracy and the principle of the rule of law, principles which are
common to the Member States.
(2) Terrorism constitutes one of the most serious violations of
those principles. The La Gomera Declaration adopted at the informal
Council meeting on 14 October 1995 affirmed that terrorism
constitutes a threat to democracy, to the free exercise of human
rights and to economic and social development.
(3) All or some Member States are party to a number of
conventions relating to terrorism.
The Council of Europe Convention
of 27 January 1977 on the Suppression of Terrorism does not regard
terrorist offences as political offences or as offences connected
with political offences or as offences inspired by political
motives.
The United Nations has adopted the Convention for the
suppression of terrorist bombings of 15 December 1997 and the
Convention for the suppression of financing terrorism of 9 December
1999. A draft global Convention against terrorism is currently being
negotiated within the United Nations.
(4) At European Union level, on 3 December 1998 the Council adopted
the Action Plan of the Council and the Commission on how best to
implement the provisions of the Treaty of Amsterdam on an area of
freedom, security and justice (3).
Account should also be taken of
the Council Conclusions of 20 September 2001 and of the
Extraordinary European Council plan of action to combat terrorism of
21 September 2001.
Terrorism was referred to in the conclusions of
the Tampere European Council of 15 and 16 October 1999, and of the
Santa Marķa da Feira European Council of 19 and 20 June 2000.
It was
also mentioned in the Commission communication to the Council and
the European Parliament on the biannual update of the scoreboard to
review progress on the creation of an area of ‘freedom, security and
justice’ in the European Union (second half of 2000).
Furthermore,
on 5 September 2001 the European Parliament adopted a recommendation
on the role of the European Union in combating terrorism. It should,
more-over, be recalled that on 30 July 1996 twenty-five measures to
fight against terrorism were advocated by the leading industrialised
countries (G7) and Russia meeting in Paris.
(5) The European Union has adopted numerous specific measures
having an impact on terrorism and organised crime, such as the
Council Decision of 3 December 1998 instructing Europol to deal with
crimes committed or likely to be committed in the course of
terrorist activities against life, limb, personal freedom or
property (4); Council Joint Action 96/610/JHA of 15 October 1996
concerning the creation and maintenance of a Directory of
specialised counter-terrorist competences, skills and expertise to
facilitate counter-terrorism cooperation between the Member States
of the European Union (5); Council Joint Action 98/428/JHA of 29
June 1998 on the creation of a European Judicial Network
(6), with
responsibilities in terrorist offences, in particular Article 2;
Council Joint Action 98/733/JHA of 21 December 1998 on making it a
criminal offence to participate in a criminal organisation in the
Member States of the European Union (7); and the Council
Recommendation of 9 December 1999 on cooperation in combating the
financing of terrorist groups (8).
(6) The definition of terrorist offences should be approximated
in all Member States, including those offences relating to terrorist
groups. Furthermore, penalties and sanctions should be provided for
natural and legal persons having committed or being liable for such
offences, which reflect the seriousness of such offences.
(7) Jurisdictional rules should be established to ensure that the
terrorist offence may be effectively prosecuted.
(8) Victims of terrorist offences are vulnerable, and therefore
specific measures are necessary with regard to them.
(9) Given that the objectives of the proposed action cannot be
sufficiently achieved by the Member States unilaterally, and can
therefore, because of the need for reciprocity, be better achieved
at the level of the Union, the Union may adopt measures, in
accordance with the principle of subsidiarity. In accordance with
the principle of proportionality, this Framework Decision does not
go beyond what is necessary in order to achieve those objectives.
(10) This Framework Decision respects fundamental rights as
guaranteed by the European Convention for the Protection of Human
Rights and Fundamental Freedoms and as they emerge from the
constitutional traditions common to the Member States as principles
of Community law. The Union observes the principles recognised by
Article 6(2) of the Treaty on European Union and reflected in the
Charter of Fundamental Rights of the European Union, notably Chapter
VI thereof.
Nothing in this Frame-work Decision may be interpreted as being
intended to reduce or restrict fundamental rights or freedoms such
as the right to strike, freedom of assembly, of association or of
expression, including the right of everyone to form and to join
trade unions with others for the protection of his or her interests
and the related right to demonstrate.
(11) Actions by armed forces during periods of armed conflict,
which are governed by international humanitarian law within the
meaning of these terms under that law, and, inasmuch as they are
governed by other rules of international law, actions by the armed
forces of a State in the exercise of their official duties are not
governed by this Framework Decision,
HAS ADOPTED THIS FRAMEWORK DECISION:
Article 1
Terrorist offences and fundamental rights and principles
1. Each Member State shall take the necessary measures to ensure
that the intentional acts referred to below in points (a) to (i), 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, or
— unduly compelling a Government or international organisation to
perform 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,
shall be deemed to be terrorist offences:
(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
explosions 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 human life;
(i) threatening to commit any of the acts listed in (a) to (h).
2. This Framework Decision shall not have the effect of altering
the obligation to respect fundamental rights and fundamental legal
principles as enshrined in Article 6 of the Treaty on European
Union.
Article 2
Offences relating to a terrorist group
1. For the purposes of this Framework Decision, ‘terrorist group’
shall mean: a structured group of more than two persons,
established over a period of time and acting in concert to commit
terrorist offences. ‘Structured group’ shall mean a group that is
not randomly formed for the immediate commission of an offence and
that does not need to have formally defined roles for its members,
continuity of its membership or a developed structure.
2. Each Member State shall take the necessary measures to ensure
that the following intentional acts are punishable:
(a) directing a terrorist group;
(b) participating in the activities of a terrorist group, including
by supplying information or material resources, or by funding its
activities in any way, with knowledge of the fact that such
participation will contribute to the criminal activities of the
terrorist group.
3. Each Member State shall take the necessary measures to ensure
that offences listed in Article 2 are punishable by custodial
sentences, with a maximum sentence of not less than fifteen years
for the offence referred to in Article 2(2)(a), and for the offences
listed in Article 2(2)(b) a maximum sentence of not less than eight
years. In so far as the offence referred to in Article 2(2)(a)
refers only to the act in Article 1(1)(i), the maxi-mum sentence
shall not be less than eight years.
Article 3
Offences linked to terrorist activities
Each Member State shall take the necessary measures to ensure that
terrorist-linked offences include the following acts:
(a) aggravated theft with a view to committing one of the acts
listed in Article 1(1);
(b) extortion with a view to the perpetration of one of the acts
listed in Article 1(1);
(c) drawing up false administrative documents with a view to
committing one of the acts listed in Article 1(1)(a) to (h) and
Article 2(2)(b).
Article 4
Inciting, aiding or abetting, and attempting
1. Each Member State shall take the necessary measures to ensure
that inciting or aiding or abetting an offence referred to in
Article 1(1), Articles 2 or 3 is made punishable.
2. Each Member State shall take the necessary measures to ensure
that attempting to commit an offence referred to in Article 1(1) and
Article 3, with the exception of possession as provided for in
Article 1(1)(f) and the offence referred to in Article 1(1)(i), is
made punishable.
Article 5
Penalties
1. Each Member State shall take the necessary measures to ensure
that the offences referred to in Articles 1 to 4 are punishable by
effective, proportionate and dissuasive criminal penalties, which
may entail extradition.
2. Each Member State shall take the necessary measures to ensure
that the terrorist offences referred to in Article 1(1) and offences
referred to in Article 4, inasmuch as they relate to terrorist
offences, are punishable by custodial sentences heavier than those
imposable under national law for such offences in the absence of the
special intent required pursuant to Article 1(1, save where the
sentences imposable are already the maxi-mum possible sentences
under national law.
Article 6
Particular circumstances
Each Member State may take the necessary measures to ensure that the
penalties referred to in Article 5 may be reduced if the offender:
(a) renounces terrorist activity, and
(b) provides the administrative or judicial authorities with
in-formation which they would not otherwise have been able to
obtain, helping them to:
(i) prevent or mitigate the effects of the offence;
(ii) identify or bring to justice the other offenders;
(iii) find evidence; or
(iv) prevent further offences referred to in Articles 1 to 4.
Article 7
Liability of legal persons
1. Each Member State shall take the necessary measures to ensure
that legal persons can be held liable for any of the of-fences
referred to in Articles 1 to 4 committed for their benefit by any
person, acting either individually or as part of an organ of the
legal person, who has a leading position within the legal person,
based on one of the following:
(a) a power of representation of the legal person;
(b) an authority to take decisions on behalf of the legal person;
(c) an authority to exercise control within the legal person.
2. Apart from the cases provided for in paragraph 1, each Member
State shall take the necessary measures to ensure that legal persons
can be held liable where the lack of supervision or control by a
person referred to in paragraph 1 has made possible the commission
of any of the offences referred to in Articles 1 to 4 for the
benefit of that legal person by a person under its authority.
3. Liability of legal persons under paragraphs 1 and 2 shall not
exclude criminal proceedings against natural persons who are
perpetrators, instigators or accessories in any of the offences
referred to in Articles 1 to 4.
Article 8
Penalties for legal persons
Each Member State shall take the necessary measures to ensure that a
legal person held liable pursuant to Article 7 is punish-able by
effective, proportionate and dissuasive penalties, which shall
include criminal or non-criminal fines and may include other
penalties, such as:
(a) exclusion from entitlement to public benefits or aid;
(b) temporary or permanent disqualification from the practice of
commercial activities;
(c) placing under judicial supervision;
(d) a judicial winding-up order;
(e) temporary or permanent closure of establishments which have been
used for committing the offence.
Article 9
Jurisdiction and prosecution
1. Each Member State shall take the necessary measures to establish
its jurisdiction over the offences referred to in Articles 1 to 4
where:
(a) the offence is committed in whole or in part in its territory.
Each Member State may extend its jurisdiction if the offence is
committed in the territory of a Member State;
(b) the offence is committed on board a vessel flying its flag or an
aircraft registered there;
(c) the offender is one of its nationals or residents;
(d) the offence is committed for the benefit of a legal person
established in its territory;
(e) the offence is committed against the institutions or people of
the Member State in question or against an institution of the
European Union or a body set up in accordance with the Treaty
establishing the European Community or the Treaty on European Union
and based in that Member State.
2. When an offence falls within the jurisdiction of more than one
Member State and when any of the States concerned can validly
prosecute on the basis of the same facts, the Member States
concerned shall cooperate in order to decide which of them will
prosecute the offenders with the aim, if possible, of centralising
proceedings in a single Member State. To this end, the Member States
may have recourse to any body or mechanism established within the
European Union in order to facilitate cooperation between their
judicial authorities and the coordination of their action.
Sequential account shall be taken of the following factors:
— the Member State shall be that in the territory of which the acts
were committed,
— the Member State shall be that of which the perpetrator is a
national or resident,
— the Member State shall be the Member State of origin of the
victims,
— the Member State shall be that in the territory of which the
perpetrator was found.
3. Each Member State shall take the necessary measures also to
establish its jurisdiction over the offences referred to in Articles
1 to 4 in cases where it refuses to hand over or extradite a person
suspected or convicted of such an offence to an-other Member State
or to a third country.
4. Each Member State shall ensure that its jurisdiction covers cases
in which any of the offences referred to in Articles 2 and 4 has
been committed in whole or in part within its territory, wherever
the terrorist group is based or pursues its criminal activities.
5. This Article shall not exclude the exercise of jurisdiction in
criminal matters as laid down by a Member State in accordance with
its national legislation.
Article10
Protection of, and assistance to, victims
1. Member States shall ensure that investigations into, or
prosecution of, offences covered by this Framework Decision are not
dependent on a reportor accusation made by a person subjected to the
offence, at least if the acts were committed on the territory of the
Member State.
2. In addition to the measures laid down in the Council Framework
Decision 2001/220/JHA of 15 March 2001 on the standing of victims in
criminal proceedings (9), each Member State shall, if necessary,
take all measures possible to ensure appropriate assistance for
victims’ families.
Article 11
Implementation and reports
1. Member States shall take the necessary measures to comply with
this Framework Decision by 31 December 2002.
2. By 31 December 2002, Member States shall forward to the General
Secretariat of the Council and to the Commission the text of the
provisions transposing into their national law the obligations
imposed on them under this Framework Decision. On the basis of a
report drawn up from that information and a report from the
Commission, the Council shall assess, by 31 December 2003, whether
Member States have taken the necessary measures to comply with this
Framework Decision.
3. The Commission report shall specify, in particular,
trans-position into the criminal law of the Member States of the
obligation referred to in Article 5(2).
Article 12
Territorial application
This Framework Decision shall apply to Gibraltar.
Article 13
Entry into force
This Framework Decision shall enter into force on the day of its
publication in the Official Journal.
Done at Luxembourg, 13 June 2002.
For the Council The President
M. RAJOY BREY
(1) OJ C 332 E, 27.11.2001, p. 300.
(2) Opinion delivered on 6 February 2002 (not yet published in the
Official Journal).
(3) OJ C 19, 23.1.1999, p. 1.
(4) OJ C 26, 30.1.1999, p. 22.
(5) OJ L 273, 25.10.1996, p. 1.
(6) OJ L 191, 7.7.1998, p. 4.
(7) OJ L 351, 29.12.1998, p. 1.
(8) OJ C 373, 23.12.1999, p. 1.
(9) OJ L 82, 22.3.2001, p. 1.
Background
The issue of terrorist offences was raised at the Tampere
European Council in 1999 and again at the Santa Maria da Feira
European Council in June 2000.
In recent years, a number of measures against terrorism have
been introduced in legislation adopted by the Member States,
such as:
The terrorist attacks of September 2001 have led the European
Union to step up action in this field. This Framework Decision
is thus designed to make the fight against terrorism at EU level
more effective
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