EU Counter-terrorism Directive 2017/541: impact on human rights and way forward at EU level

By Karolína Babická, ICJ Legal Adviser

The EU Counter-terrorism Directive

On 15 March 2017 the European Union (EU) adopted EU Directive 2017/541 on Combatting Terrorism (“the Directive”)with a deadline for transposition into domestic law of 8 September 2018. The Directive aims principally to extend the scope of application of criminal law by Member States to terrorism related threats and activity within the EU.

In so doing it covers an expansive range of terrorist offences, some previously recognized in international and (most) domestic legal frameworks, and others more innovative. These include classic crimes related to terrorist acts (article 3), as well as financing (article 11) and providing terrorist training (Article 7), for example, as well as ‘related’ offences of ‘public provocation’ of terrorism (recital 10/article 5), ‘receipt’ of training (article 8), ‘travel… for the purpose of terrorism’ (article 9); aiding and abetting, inciting, attempting or facilitating these offences (articles 10, 14).

The Directive followed the UN Security Council Resolution 2178 (2014) (SCRes2178) and the Additional Protocol to the Council of Europe’s Convention on the Prevention of Terrorism (2015) aimed at implementing SCRes2178 within the Council of Europe legal framework. It also reflects elements of earlier resolutions such as SCRes 1624, 1456, or 2462 (2019).

The Directive has been criticised for the hasty process of its adoption, its scope and human rights implications. It poses challenges for the EU Member States, for national legislatures, and in turn for prosecutors and investigative judges and the judiciary in ensuring implementation consistently with human rights and the rule of law. 

Human rights concerns

The Directive raises many human rights concerns, which pose complex challenges for national legislators and also for judges, prosecutors and lawyers in the implementation of the laws. The breadth and indeterminacy of many of the offences enshrined in the Directive raise fundamental concerns regarding compatibility with the principle of legality, non-retroactivity, clarity or foreseeability.

It is a basic principle of criminal law that individuals may only be prosecuted and punished as a result of their own culpable conduct and intent. A number of terrorism offences (especially some of the preparatory acts) though come into tension with this principle where liability may be based on simple conduct, absent proof that the conduct had any effect or created even a forseeable danger of harm, and may not require intent to contribute to acts of terrorism.

Associated or inchoate offences or modes of liability, such as facilitating, aiding and inciting, as transposed into domestic law, risk further undermining the exercise of human rights and raise serious concerns as to their limits and implications. Laws providing for criminalisation pursuant to the Directive may, on their face or in the manner in which they are implemented, serve to restrict the enjoyment of certain human rights and fundamental freedoms, such as the freedoms of movement, assembly, association, expression, right to political participation, privacy or private and family life.

Multiple other human rights obligations arise in the context of the investigation and prosecution of the Directive crimes including, among others, the rights to privacy, liberty and fair trial. And the Directive forms part of a trend in anti-terrorism towards an increasingly ‘preventive’ role for criminal law.

The action taken at EU level

The transposition of the Directive by EU Member States has been reviewed by the European Commission and published on 30 September 2020 and the impact of the Directive on Fundamental rights should be assessed by the Commission next year.

The main issues the transposition report has identified are the lack of incorporation of offences listed in Article 3 of the Directive, such as travelling for purpose of terrorism and terrorist financing. The transposition report is a technical document, looking at the wording of the Directive in comparison to national legislation, and makes conclusions based on what might be missing in the litera of national laws. The transposition of the Directive as a whole in each specific national legal framework is not always reflected.

The tranposition report is a rather technical exercise, and what will be probably more important is the upcoming report on the added value and impact on fundamental rights, which the European Commission should submit in September 2021 to the European Parliament and the Council.

The added value report is a routine report for all EU instruments looking at the following indicators: relevance, effectiveness, efficiency, cost-effectiveness, EU added value, sustainability and whether the instrument has achieved its objectives. And in the case of the Directive 2017/541, the impact on human rights will also be assessed, including the impact on non-discrimination, on the rule of law, and on the level of protection and assistance provided to victims of terrorism

The report will be based on research done by the EC itself and fed in by a background study that the Commission is currently contracting and by a study of the Fundamental Rights Agency (FRA).

The importance of judicial interpretation and application of counter-terrorism measures in the EU

The Directive, and consequently national legislation, leaves judges, prosecutors and other legal practitioners often with an uneasy task of application of the criminal laws implementing the Directive offences. Judges and prosecutors are facing the challenge of applying criminal law, with often vague or non-existent definitions.

The first line of defence against overreaching criminal law is national legislatures, which must define criminal offences precisely and consistently with international law. But it is the responsibility of the judiciary to interpret and apply the law in line with human rights and rule of law principles, and to provide the oversight inherent in a rule of law approach to criminal justice. National judges have a critical role and responsibility as guarantors of the rule of law and human rights in countering terrorism.

The essential role of an independent judiciary and legal profession in the effective protection of human rights and maintenance of the rule of law, without discrimination, has been affirmed in, for instance, the UN Basic Principles on the Independence of the Judiciary, the UN Basic Principles on the Role of Lawyers, and the UN Guidelines on the Role of Prosecutors.

In turn, prosecutors, in the way that they interpret criminal law, frame charges, implement investigative and prosecutorial policies and – to different degrees in some Member States – exercise their discretion whether and when to prosecute, will play a crucial role in determining whether the Directive is implemented consistently with human rights, or undermines those rights and the criminal justice process. (See Guideline 12, UN Guidelines on the Role of Prosecutors, 1990).

The Guidance for judges, prosecutors and lawyers on the application of the Directive

For that reason, the ICJ, national (Nederlands Juristen Comité voor de Mensenrechten (NJCM) and Scuola Superiore Sant’Anna di Pisa) and international partners (Human Rights in Practice) have put together Guidance on the appropriate judicial interpretation and application of the Directive in practice throughout the process of investigation, prosecution and trial, consistently with international and EU human rights law and standards.

This Guidance (Counter-terrorism and human rights in the courts: guidance for judges, prosecutors and lawyers on application of EU Directive 2017/541 on combatting terrorism) was written as part of the JUSTICE project, building on expert roundtables held in 2019 across the EU (in Pisa, the Hague, Madrid and Brussels) with judges, lawyers, prosecutors and other relevant stakeholders from various EU Member States, as well as national studies and consultations with judges, lawyers and prosecutors in Belgium, the Netherlands, Germany, Spain, Italy and France.

It gives an overview of the applicable international and EU legal standards and criminal law principles for investigation, prosecution and trial of terrorism cases, based on the EU Directive, and recommends means on ensuring that these are applied in a human rights compliant manner.