Tag Archives: Criminal liability

Terrorist offences

Terrorist offences

Outline of the Community (European Union) legislation about Terrorist offences

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against terrorism

Terrorist offences

Document or Iniciative

Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism [See amending act(s)].

Summary

The framework decision harmonises the definition of terrorist offences in all EU countries by introducing a specific and common definition. Its concept of terrorism is a combination of two elements:

  • an objective element, as it refers to a list of instances of serious criminal conduct (murder, bodily injuries, hostage taking, extortion, fabrication of weapons, committing attacks, threatening to commit any of the above, etc.);
  • a subjective element, as these acts are deemed to be terrorist offences when committed with the aim of seriously intimidating a population, 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.

The framework decision defines a terrorist group as a structured organisation consisting of more than two persons, established over a period of time and acting in concert, and refers to directing a terrorist group and participating in its activities as offences relating to a terrorist group.

Furthermore, EU countries must ensure that certain intentional acts are punishable as offences linked to terrorist activities even if no terrorist offence is committed. These include:

  • public provocation to commit a terrorist offence;
  • recruitment and training for terrorism;
  • aggravated theft, extortion and falsification of administrative documents with the aim of committing a terrorist offence.

To punish terrorist offences, EU countries must make provision in their national legislation for effective, proportionate and dissuasive criminal penalties, which may entail extradition. In addition, EU countries must ensure that penalties are imposed on legal persons where it is shown that the natural person has the power to represent the legal person or authority to exercise control within the legal person that has committed a terrorist offence.

EU countries must take the necessary action to:

  • establish their jurisdiction with regard to terrorist offences;
  • establish their jurisdiction where they refuse to hand over or extradite a person suspected or convicted of such an offence to another EU country or to a non-EU country;
  • coordinate their activities and determine which of them is to prosecute the offenders with the aim of centralising proceedings in a single EU country, when several EU countries are involved.

They will also ensure appropriate assistance for victims and their families (in addition to the measures already provided for in Framework Decision 2001/220/JHA).

Background

The terrorist attacks of September 2001 have led the EU to step up action in this field. This framework decision is thus designed to make the fight against terrorism at EU level more effective. This problem was already discussed at the European Council meetings in Tampere in October 1999 and in Santa Maria da Feira in June 2000.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2002/475/JHA

22.6.2002

31.12.2002

OJ L 164 of 22.6.2006

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2008/919/JHA

9.12.2008

9.12.2010

OJ L 330 of 9.12.2008

Related Acts

Report from the Commission of 6 November 2007 based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism [COM(2007) 681 final – Official Journal C 9 of 15.1.2008].
This second report notes that most EU countries evaluated for the first time have satisfactorily achieved implementation of the main provisions contained in the framework decision. Nevertheless, some major issues stand out. Concerning the EU countries evaluated for the second time, the additional information they have sent has allowed the Commission to generally conclude that there is a higher level of compliance. However, most of the main deficiencies identified in the first evaluation report remain unchanged.
The main concerns of the Commission are the deficient implementation, by some EU countries, of the provisions that establish a common definition of terrorism and the harmonisation of penalties for offences related to a terrorist group and of criminal liability of legal persons for terrorist offences.

Report from the Commission of 8 June 2004 based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism [COM(2004) 409 final – Official Journal C 321 of 28.12.2004].
This report reviews the measures taken by EU countries to comply with the framework decision on combating terrorism. According to it, most EU countries have taken the necessary measures to comply with the main provisions of this legal instrument. However, certain deficiencies were pointed out.

Fight against organised crime: participation in a criminal organisation

Fight against organised crime: participation in a criminal organisation

Outline of the Community (European Union) legislation about Fight against organised crime: participation in a criminal organisation

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against organised crime

Fight against organised crime: participation in a criminal organisation

Acts

Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime.

Summary

The aim of this Framework Decision is to harmonise Member States’ definitions of crimes related to a criminal organisation * and to lay down corresponding penalties for these offences. There are two types of conduct of which Member States must recognise at least one as an offence:

  • active participation in an organisation’s criminal activities, with the knowledge of its aim or of its intention to commit crimes;
  • an agreement on the perpetration of crimes without necessarily taking part in committing them.

The Member States must take steps to penalise the above offences in that the first results in a maximum term of imprisonment of a minimum of two to five years, and the second in a maximum term of imprisonment equivalent to that of the planned activities or in a maximum term of a minimum of two to five years. The Member States may reduce, or allow for an exemption from, these penalties if the offender relinquishes criminal activity and assists the authorities by providing them with otherwise unobtainable information on the offence and the other offenders.

The Member States must also hold any legal person * accountable for the above offences that have been committed on its behalf by a person who has a central role in the legal person in question, even if that person has acted in an individual capacity. An offence committed, as a result of lack of supervision, by a person under the authority of the former may also be held against the legal person.

The legal persons held accountable for offences must be punished by effective, proportionate and dissuasive penalties. These should include both criminal and non-criminal fines. The penalties may also include the following:

  • ending the right to public aid;
  • temporarily or permanently prohibiting commercial activities;
  • placing under judicial supervision;
  • judicial winding-up;
  • temporarily or permanently closing the establishments used for the offences.

A Member State’s jurisdiction must cover the offences if they are committed on its territory, in whole or in part, by its national or on behalf of a legal person set up on its territory. If the offence is committed outside a Member State’s territory, it may choose whether or not to apply the last two rules. If the offence falls within the jurisdiction of several Member States, they must collaborate, for example via Eurojust, in order to decide on the prosecuting country and thus to centralise the proceedings. However, in doing so, the Member States must give due consideration to where the offence was carried out, the nationality or place of residence of the offender, the country of origin of the victim and the territory where the offender was found.

If a Member State does not extradite or surrender its nationals, it must revamp its jurisdiction and take steps to prosecute its nationals when they commit an offence outside its territory. Simultaneously, the Member State may continue to apply its jurisdiction to criminal matters as stipulated in its national law.

For offences that have been committed on the territory of a Member State, the investigations and prosecutions by that Member State must be carried out without requiring a report or an accusation from a victim.

Background

The need to improve the measures used to combat organised crime was acknowledged in the Commission Communication of 29 March 2004 on measures to be taken to combat terrorism and other forms of serious crime, in particular to improve exchanges of information. Hence, the Commission simultaneously informed of its intention to draw up a Framework Decision that would replace 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. This Framework Decision 2008/841/JHA therefore repeals the Join Action 98/773/JHA.

Key terms used in the act

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  • Criminal organisation: a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences that are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a serious penalty, to obtain, directly or indirectly, a financial or other material benefit.
  • Structured association: an association that is not randomly formed for the immediate commission of an offence, nor does it need to have formally defined roles for its members, continuity of its membership, or a developed structure.
  • Legal person: any entity having legal personality under the applicable law, except for States or public bodies in the exercise of State authority and for public international organisations.

References

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Framework Decision 2008/841/JHA

11.11.2008

11.5.2010

OJ L 300 of 11.11.2008

Framework decision on combating racism and xenophobia

Framework decision on combating racism and xenophobia

Outline of the Community (European Union) legislation about Framework decision on combating racism and xenophobia

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Combating discrimination

Framework decision on combating racism and xenophobia

Document or Iniciative

Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law.

Summary

As a follow-up to Joint Action96/443/JHA, this framework decision provides for the approximation of laws and regulations of the Member States on offences involving racism and xenophobia. Racist and xenophobic behaviour must constitute an offence in all Member States and must be punishable by effective, proportionate and dissuasive penalties of a maximum of at least one to three years of imprisonment.

This framework decision applies to all offences committed:

  • within the territory of the European Union (EU), including through an information system;
  • by a national of a Member State or for the benefit of a legal person established in a Member State. To that end, the framework decision provides criteria on how to determine the liability of a legal person.

Certain forms of conduct as outlined below, which are committed for a racist or xenophobic purpose, are punishable as criminal offences:

  • public incitement to violence or hatred directed against a group of persons or a member of such a group defined on the basis of race, colour, descent, religion or belief, or national or ethnic origin;
  • public dissemination or distribution of tracts, pictures or other material containing expressions of racism and xenophobia;
  • public condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in the Statute of the International Criminal Court (Articles 6, 7 and 8) and crimes defined in Article 6 of the Charter of the International Military Tribunal, when the conduct is carried out in a manner likely to incite violence or hatred against such a group or a member of such a group.

Instigating, aiding or abetting in the commission of the above offences is also punishable.

With regard to the offences listed in Article 1, Member States must ensure that they are punishable by:

  • effective, proportionate and dissuasive penalties;
  • terms of imprisonment of a maximum of at least one to three years.

In all cases, racist or xenophobic motivation is considered to be an aggravating circumstance or, alternatively, such motivation may be taken into consideration when determining the penalties to be applied.

With regard to legal persons, the penalties must be effective, proportionate and dissuasive and must consist of criminal or non-criminal fines. In addition, legal persons may be punished by:

  • exclusion from entitlement to public benefits or aid;
  • temporary or permanent disqualification from the practice or commercial activities;
  • being placed under judicial supervision;
  • a judicial winding-up order.

The initiation of investigations or prosecutions of racist and xenophobic offences must not depend on a victim’s report or accusation.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2008/913/JHA

6.12.2008

28.11.2010

OJ L 328 of 6.12.2008