25. Goal of Part I – This Part of the book aims to establish the evaluative and normative framework. As was explained in the introduction (see nos 12–13), the focus of this book is on measures that directly impact the physical liberty of people. Within the framework of the ECHR, this means that Article 5 ECHR, which protects the right to liberty and security, is of paramount importance. However, this is not the only relevant Article. Article 2 of the Fourth Protocol to the ECHR protects the freedom of movement and also directly relates to people's physical liberty.

26. Article 5 ECHR – Article 5 of the ECHR reads:

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

• (a) the lawful detention of a person aft er conviction by a competent court;

• (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

• (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fl eeing aft er having done so;

SECTION I. NUMBERS

286. PARLIAMENTARY RESEARCH COMMITTEE NUMBERS – In one of its reports the Parliamentary research committee on the Brussels terrorist attacks lists the following numbers concerning pre-trial detention:

SECTION II. INITIAL DEPRIVATION OF LIBERTY

287. DEPRIVATION OF LIBERTY BEFORE CONVICTION – The aforementioned criminal offences can lead to a deprivation of liberty in the form of a conviction to a prison sentence or electronic monitoring. However, within the criminal justice system, deprivations of liberty before a final conviction are possible as well. Suspects can be taken into pre-trial detention, which can also take the form of imprisonment or electronic monitoring.1441 Electronic monitoring in this context means the suspect has to stay at a specific address the whole time, unless they are explicitly granted the right to leave for certain reasons, and this house arrest is enforced with an electronic tag. Furthermore, a provisional release from pre-trial detention is possible too, meaning suspects are released but have to observe conditions. Posting a bail sum can be one of the conditions imposed. It is up to the judge to decide which conditions they deem appropriate. However, the conditions need to relate to the reasons for absolute necessity for the public security (see no. 294). Furthermore, the preparatory works state that the conditions cannot amount to custodial measures, such as 24 hour house arrest.

SECTION I. GENERAL COMPARISON

541. BELGIAN VS. UK CRIMINAL LAW – In the introductions to Parts II and III, some general observations are made and basic rules explained with regard to Belgian and UK law. Comparing these two introductions, many small differences immediately catch the eye. However, none of these differences are so marked as to make comparison impossible. Even so, a few points have to be kept in mind. In terms of criminal law, both jurisdictions in principle require actus reus and mens rea for an offence to exist, but the UK also has strict liability offences and a system of defences, which depend on the specific offence. This system does not exist in Belgium and sometimes makes the construction of the elements of the offence more complicated in the UK, as the defence can be a form of mens rea for which the burden of proof is shift ed. Regarding sentencing, Belgian criminal law provides lower maximum sentences for inchoate offences than for the actual offence, which is not the case in the UK. At first glance, UK criminal law allows judges more leeway when sentencing in general, because it only provides for (oft en relatively high) maximum sentences and no minima. However, this first reading is deceptive. Belgian judges are authorised to lower the sentences well below the minimum sentence when applying attenuating circumstances, which is something that very frequently happens.

SECTION I. ACTUS REUS

252. TRAVELING FOR TERRORIST PURPOSES – When the issue of foreign terrorist fighters took the foreground, the UN Security Council stated in a resolution ‘that all States shall ensure that their domestic laws and regulations establish serious criminal offences sufficient to provide the ability to prosecute and to penalize in a manner duly refl ecting the seriousness of the offence: (a)their nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training.’ Aft er this resolution, the Council of Europe included a similar provision in an additional protocol to the Convention on the Prevention of Terrorism. The EU also included a comparable provision in its Directive on Combating Terrorism. However, on top of outbound travel, the Directive also covers inbound travel. With regard to inbound travel the Member States have two options: to criminalise inbound travel as the mirror image of outbound travel or to criminalise preparatory acts undertaken by a person entering the Member State with the intention to commit or contribute to the commission of terrorism sensu stricto.

101. OVERVIEW OF PART II – As explained in the methodology (see no. 18), in this Part we discuss the Belgian framework of preventive restrictions of physical liberty in a counter-terrorism context. Since Belgium has no administrative measures depriving or limiting the liberty of people to prevent terrorism, this Part is solely focussed on criminal law. The rest of this introduction briefl y outlines the Belgian criminal justice system and the country's context of terrorism. Chapters I through XII answer research question 2.1, while Chapter XIII answers research question 2.2. We will commence with a Chapter which focusses on the different possibilities for limitations to the right to liberty in Belgium. This Chapter is followed by nine other ones which each discuss one Article of the Belgian Criminal Code containing terrorist offences. Chapter II covers terrorism sensu stricto and chapters III to X cover the offences of terrorism sensu lato (for the difference, see no. 7). In Chapter III the offences pertaining to terrorist groups are discussed. Some authors put these offences in the same category as the offences in Article 137 CC (terrorism sensu stricto). However, the offences pertaining to terrorist groups are also based on a preventive rational. It is not required that the group has already committed terrorism sensu stricto.

SECTION I. THE GOAL OF THIS CHAPTER

520. ANALYSING THE EXISTING LEGISLATION – Throughout the first two Chapters of this Part, the UK legislation has been described in detail. The UK uses both criminal justice and administrative law to try to counter terrorism. Within the criminal justice system, we see terrorism offences sensu stricto as well as a large amount of terrorism offences sensu lato. In addition to this description, criticism sections highlighted the most important criticism on the legal framework. As was the case for the Belgian Part (see no. 310–327), the final Chapter of this Part will serve as a summary of the most important of these issues. This analysis is, however, relatively short as it just seeks to touch upon the main points of the UK legislation and the main criticisms. A thorough and more detailed analysis will be included in the next Part of this book, which compares the Belgian and UK legal frameworks and aims to answer the main research question of this book.

SECTION II. THE RIGHT TO LIBERTY IN THE UK

521. DOMESTIC INTERPRETATION OF ARTICLE 5 ECHR – In their interpretation of Article 5 ECHR, the UK domestic courts largely follow the case law of the ECtHR. However, several commentators argue that a domestic recalibration of Article 5 took place, narrowing its scope.This became clear in the control order case law, as UK courts put more focus on the paradigm element of deprivations of liberty.

SECTION I. RESTRICTIONS TO THE RIGHT TO LIBERTY

337. DEPRIVATION OF LIBERTY – As was the case for Belgium, deprivations of liberty in a counter-terrorism context will most oft en be imposed within a criminal law framework. When a person is suspected of a criminal offence, they can be taken into pre-trial detention if certain conditions are met (see nos 486–495). Aft er conviction for a terrorism offence a prison sentence, depriving the convicted person of their liberty for a substantial period of time, is the most likely outcome.

338. SENTENCING ACT 2020 – In 2020, UK parliament acknowledged that the existing rules on sentencing had become too difficult to apply and even to find. Therefore, the rules were amended and consolidated in 2020 by the Sentencing (Pre-consolidation Amendments) Act 2020 and the Sentencing Act 2020 (SA 2020).

339. SENTENCING: SERIOUS TERRORIST SENTENCes – When imposing a custodial sentence, a court must impose the shortest possible sentence commensurate with the seriousness of the offence or the combination of the offence and other offences associated with it. This rule does not apply when the sentence is fixed by law, including mandatory life sentences. Another exception, which was introduced by the CTSA 2021 (and only applies to offences committed aft er its entry into force) are the serious terrorist sentences.

INTRODUCTION

496. EVOLUTION OF THE LEGISLATION – The UK also employed administrative detention as a tool in its struggle with terrorism in the 20th Century. When originally consolidating and restructuring its counter-terrorism legislation in the TA 2000, the UK legislature did not include administrative detention. However, in response to 9/11, a version of administrative detention was introduced as a counter-terrorism measure. This administrative detention was controversial from the outset and aft er a declaration of incompatibility by the House of Lords, it was replaced by control orders. Control orders were also widely criticised and led to legal challenges and extensive case law. Due to this case law and a change in government, control orders were in turn abolished and replaced by Terrorism Prevention and Investigation Measures (TPIMs). The TPIM legislation is currently still in force. At the outset TPIMs were significantly more lenient than control orders in several respects, but several changes to the legislation have made them stricter again and at this point, the practical difference between a TPIM and what used to be a control order is minimal. This Chapter discusses the evolution from administrative detention under the ATCSA 2001 to the current TPIMs and analyses the current legislation.

SECTION I. ANTI-TERRORISM, CRIME AND SECURITY ACT 2001 497. ADMINISTRATIVE DETENTION OF FOREIGNERS – The ATCSA 2001 made it possible to indefinitely detain foreign terrorism suspects who would have been deported if not for issues such as the risk of torture or killing in their country of origin.

SECTION I. TERRORIST GROUPS

165. OFFENCES RELATING TO TERRORIST GROUPS – Article 140 CC contains three offences, all three of which criminalise conduct related to terrorist groups. An important question for these three offences therefore is, when is a group of people a terrorist group?

166. DEFINITION TERRORIST GROUP – Article 139 CC defines a terrorist group as ‘any structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences, as meant in Article 137.’ The preparatory works add that a structured group is a group that ‘is not randomly formed and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.’ Both the definition of a terrorist group in Article 139 CC and the definition of a structured group in the preparatory works, are almost literal copies of an Article of the Framework Decision. While ‘acting in concert’ suggests a form of mutual deliberation and coherence of actions, the extent of the collaboration required is uncertain. For example, not all members have to be informed about each other's actions or even know each other, as long as they all contribute to the existence of the group. Nor does contact between members have to be in person, but can also be over the internet937 or by other means of correspondence.

SECTION I. ACTUS REUS

235. PROVIDING TRAINING – Article 140quater CC was also introduced in 2013, in the wake of the Council of Europe Convention and the update of the Framework Decision. For both the actus reus and mens rea of this offence, the Belgian legislature used wording very similar to that of the European instruments. The actus reus of Article 140quater CC is to instruct or provide training in the manufacturing or use of explosives, firearms or other weapons or harmful or dangerous substances or in other specific methods and techniques. This is a non-exhaustive list, so any training or instruction that are provided with the required mens rea (see no. 236) can fall within the scope of this Article. The preparatory works provide as extra examples of training in the sense of Article 140quater CC fl ying or driving lessons, or lessons on how to hack a website. However, as discussed below (see no. 239) the Constitutional Court has introduced some doubt on whether the offence actually goes so far as to potentially criminalise driving lessons and the like. The training provided can be theoretic or practical. Both ‘instruct’ and ‘provide’ imply an action on behalf of the perpetrator. The Criminal Code also states that Article 140quater is applicable without prejudice to the application of Article 140 CC (for comments on this, see no. 212).

SECTION I. OPERATIONALISING MAIN PRINCIPLES

90. RIGHT TO LIBERTY – As explained in the previous Chapter, deprivations of liberty relevant for our purposes will take place in the context of criminal proceedings rather than administrative measures. Specifically, subparagraphs (a) and (c) will be relevant. Looking at the case law of the ECtHR concerning the right to liberty, we can note that the Court is not always consistent when invoking principles. Judges do not always refer to the same principles and even when they do, they do not necessarily use the exact same terminology. The general principles referred to by the Court are the protection against arbitrariness, the rule of law (and specifically legal certainty) and proportionality. We would argue that the first principle, the ultimate goal of Article 5 ECHR, encompasses the other two. In several cases, the Court links avoiding the risk of arbitrariness back to respect for the rule of law and the principle of legal certainty, and the principle of proportionality. We would argue that these two principles are the core of the protection against arbitrariness: legal certainty (part of the legality principle) and proportionality. The legality principle establishes the minimal conditions for a right, in casu the right to liberty, to be restricted but it does not refer to the substantial need to restrict that right.

SECTION I. ACTUS REUS

207. INTRODUCTION 2013 – Article 140bis CC was introduced in 2013, in response to the Council of Europe Convention on the Prevention of Terrorism1118 and the Council Framework Decision 2008/919/JHA. At the moment of its introduction, the actus reus of the offence was the following: disseminating or otherwise making available to the public a message when such conduct, whether or not directly aimed at the commission of some terrorist offences (see no. 213), carries a risk that one or more of these offences may be committed. With this offence the legislature wanted to criminalise both direct and indirect incitement to commit a terrorist offence, as required by the EU Directive. The general rules on public incitement, which are applicable to all felonies and standard offences, only criminalise direct incitement. Several factors are important for the analysis of whether or not there is a risk that terrorist offences may be committed. These factors are: the perpetrator (e.g. whether they are a person of infl uence and charisma), the receiver (e.g. the amount of people who receive the message and how easy they are to infl uence), the nature of the message (e.g. whether the words themselves call for violence or hatred) and the context (e.g. political tension). In the original bill, the risk that one or more terrorist offences is committed was not required.

599. THE ISSUE OF PREVENTION – As established in the very beginning of this book, in the field of counter-terrorism, prevention is considered a must (see no. 3). Governments all over the world, the Belgian and UK governments included, have undertaken a myriad of initiatives in order to prevent terrorist attacks. Government intervention has indeed succeeded in apprehending certain people who had nefarious plans which, if left unchecked, would have caused civilian casualties and could have spread terror. However, prevention in itself is almost impossible to measure. It is extremely difficult to assess whether actions undertaken to avoid events taking place did actually succeed in their goal, as the fact that something did not happen does not mean the preventative action was successful. An infinite number of other factors may have played a role; establishing causality between a preventative government policy and the fact that terrorist attacks did not happen is therefore near impossible. This means that the exact impact and efficacy of a policy and especially of individual policy decisions is, and will most likely always remain, unknown. In this book we have assumed that restrictions to physical liberty can have a preventative effect, which seems to be a relatively safe assumption in general; but the inherent vagueness of prevention should always be kept in mind. Prevention is used by governments as the impetus to introduce many and far-reaching powers.

16. MAIN RESEARCH QUESTION – The objective of our research is to compare the ways in which Belgium and the UK have used very intrusive measures in order to prevent terrorism and ascertain how best to do so. The most intrusive measures a state can employ are those which have a direct impact on the right to liberty of people, so that is where the focus of this book lies. Therefore, the starting point of the analysis is the right to liberty (Part I). Next, the Belgian legal framework is examined, as Belgium is the main jurisdiction in question (Part II). Then, the same is done for the UK (Part III). The UK has been faced with a similar problem as Belgium but chose to react to it differently. Therefore, the UK approach might provide valuable insights in how the Belgian system could be improved. In order to achieve these insights, a detailed comparison between the two jurisdictions is undertaken in Part IV, aft er which general conclusions on the prevention of terrorism through direct restrictions to the right to liberty are drawn and recommendations are made on how to improve the Belgian legislation. In short, our research sought an answer to the following question:

Is the Belgian or the UK approach to prevention of terrorism through direct restrictions to the right to liberty preferable in light of this right; and how could the Belgian approach be improved?