| 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
María 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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