SECTION I. SCOPE OF APPLICATION

SUBSECTION I. DEPRIVATION VS. RESTRICTION

30. DEPRIVATION VS. RESTRICTION – The ECHR establishes certain human rights and explains under which circumstances these rights can be limited. This way the ECHR aims to protect people from arbitrary interferences with any of the protected rights. In its case law on Article 5, the ECtHR oft en repeats that the aim of that Article is to ensure that no one is deprived of their liberty in an arbitrary fashion. Mere restrictions to the liberty of movement are not covered by Article 5 ECHR, which explicitly uses the terms ‘deprived of his liberty.’ This does not mean states can restrict people's physical liberty without restraint. Restrictions have to meet the criteria of the freedom of movement in Article 2 of the Fourth Protocol to the ECHR. An important question which thus arises is where to draw the line between a deprivation and a restriction of liberty.

31. WHERE TO DRAW THE LINE? – In assessing whether there has been a deprivation of liberty the ECtHR does not consider itself bound by any legal conclusions of the domestic authorities. Its assessment is autonomous. With regard to this assessment, the Court has repeatedly stated that ‘the difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance.’

SECTION I. CRIMINAL LAW

82. CRIMINAL VS. ADMINISTRATIVE – In this research on preventive counterterrorism measures with a direct impact on the right to liberty, criminal law comes into play, as offences oft en entail imprisonment or house arrest. Criminal procedure law also allows for pre-trial detention. Administrative law has also been used in order to prevent terrorism in ways which have a direct impact on the right to liberty, for example, by way of TPIM's in the UK.

83. SENTENCES FOR TERRORIST OFFENCES – Terrorist offences are considered to be quite serious and therefore, the sentence will oft en be imprisonment. That is the most obvious example of a deprivation of liberty, which falls under Article 5 ECHR. Among the lighter sentences, full day house arrest would also be considered a deprivation of liberty. Other sentences would need to be analysed on a case-by-case basis; for example, probation measures with the obligation to report to the police at regular intervals and/or overnight house arrest. Looking at the case law of the ECtHR, we can try to draw a rough line. From Guzzardi we learn that the combination of a relocation order, a limited area to move about which is not frequented by many other people, overnight curfew between 10 pm and 7 am, the obligation to report twice a day and limitations on phone calls amount to a deprivation of liberty (see no. 33).

SECTION I. OFFENCES

SUBSECTION I. THE GOAL OF THIS CHAPTER

310. ANALYSING EXISTING OFFENCES – Throughout Chapters I to IX of this Part, we have described the Belgian terrorism offences and their application. It is clear from these Chapters that, when given options, the Belgian legislature has oft en chosen for the most repressive one, for example by choosing for an aggravating circumstance if minors are involved; by including it in more offences than mentioned in the Directive; or by choosing to criminalise inbound travel. However, Chapters I to IX did more than just describe. Throughout the text, issues in the legislation in light of the framework set up in Part I have been highlighted. This final Chapter of this Part will serve as a summary of the most important of these issues and offer preliminary remedies. These remedies are preliminary because their goal is to provide answers for the most pressing issues without fundamentally altering the Belgian response to terrorism. Attempting to answer the main research question in full would be premature at this stage. How the Belgian legislation can be improved, is a question which will be answered in the fourth and final Part of this book, aft er a thorough comparison of the Belgian and UK jurisdictions.

SUBSECTION II LEGAL CERTAINTY

a) Constitutional Court 19 March 2019

311. LENIENT COURT – As discussed above (see nos 155–159, 209, 218–221, 231–232, 239–240, 249 and 256–260), several of the terrorist offences were challenged before the Constitutional Court for potentially violating the legality principle.

MAIN RESEARCH QUESTION –

This is the main research question that was set out to be answered. The question has two facets. First, which jurisdiction has the preferable approach in terms of the right to liberty. Second, how the Belgian approach could be improved. However, before any meaningful answer could be formulated for either of these facets, several terms had to be defined and operationalised.

659. Restrictions of liberty – The first Part of this book does exactly that. The right to liberty and the free movement of persons under the ECHR were analysed in detail. This provides a detailed and nuanced answer to the question what a ‘restriction of liberty’ is. Part I focussed first on the ECtHR case law related to the scope of application of the right to liberty and the possibilities to limit this right. Next, the case law on the free movement of persons was discussed.

660. Evaluative and normative framework – The main goal of the right to liberty is the prevention of arbitrary detention. Two main principles which aim to achieve this goal were identified: legal certainty and proportionality. The analysis also showed that those same principles are at the core of restrictions to the free movement of person

SECTION I. ACTUS REUS

131. TERRORIST ATTACKS –The first terrorist offence in Title Iter is terrorism sensu stricto: the actual terrorist attacks. This offence was introduced in 2003, implementing the original Framework Decision adopted by the EU in 2002.784 The Belgian legislature adhered closely to the wording of the European instrument when transposing it to Belgian law.

132. TWO LISTS – The actus reus of terrorism sensu stricto in Belgium consists of two lists. Article 137, §2 CC contains the first one. It consists of criminal offences that are also punishable outside of the context of terrorism, for example murder or hostage taking. Article 137, §3 CC contains the second list, which describes actions that do not conform to the definition of other criminal offences outside of a terrorism context, for example, hijacking a vehicle other than an aircraft or a ship (hijacking those is a pre-existing offence featured in §2), or threatening to commit terrorism sensu stricto. Note that this does not mean none of those actions could be punished outside of the context of terrorism since they might be included in other, broader, offences. Carjacking, for example, would constitute aggravated theft or extortion, depending on the circumstances. However, ‘carjacking’ as such is not a specific offence. Aft er its introduction in 2003, Article 137 CC was amended three times. All three of those amendments added items to the lists. In 2009 piracy was added to the list of §2 of potential terrorist offences.

21. BELGIUM – The issues explained above (see nos 1–10) arose in many states across the globe. The extent to which countries use criminal law and administrative law in the aforementioned ways varies. This PhD compares the legal systems of Belgium and the UK, using Belgium as the starting point for comparison. The UK was part of the EU until 2020, Belgium still is, and both are part of the Council of Europe. The same legal instruments thus bound them in their recent struggle against terrorism. Within the group of EU countries, Belgium is interesting because of its strong tradition of using criminal law and avoiding the use of administrative measures where possible. Belgium has implemented some administrative measures to prevent terrorism (e.g. asset freezing or the confiscation of passports) but has mainly used traditional criminal justice tools. It does not (yet) have any administrative counterterrorism measures that have a direct impact on the right to liberty or freedom of movement. A proposal to introduce electronic monitoring for suspected terrorists in Belgium was put forward in 2015 but appears to have been shelved.

22. THE UK – The UK has a large amount of experience with terrorism and is considered somewhat of an example in terms of counter-terrorism measures.79 The relevant EU instruments (see no. 2) have also been infl uenced by the UK legislation and its point of view on counter-terrorism.

283. TWO NEW VARIATIONS TO OFFENCES – As explained in the introduction to this Chapter (see no. 109) the new Criminal Code includes the same terrorist offences as the current Criminal Code, to which two new variations of offences would be added, being glorification and facilitating travel.

284. GLORIFICATION – The new Code includes a new paragraph in the incitement offence which criminalises glorification. The new offence consists of publicly, denying, grossly minimising, attempting to justify or condone the traveling offences or any of the offences of terrorism sensu stricto, excluding the threatening offence, when this behaviour poses a serious and real risk that one or more of these offences may be committed and the behaviour was committed with that intention. This new offence would not have any added value compared to the already existing incitement offence, as it is simply a subcategory of the existing offence (see no. 576).

285. FACILITATING TRAVEL – A new paragraph would also be introduced in the traveling offence. This new paragraph criminalises organising or in any other way facilitating a trip from or to Belgium for a person with a view to committing or contributing to the commission of terrorism sensu stricto, barring the threatening offence, and terrorism sensu lato, barring the preparation offence.

539. OVERVIEW OF PART IV – This final Part of the book is divided into three Chapters. The first contains the comparative analysis of the two jurisdictions. In this Chapter, the Belgian and UK systems are systematically compared on all relevant points. In doing so, this Chapter answers research questions 4. and 4.2. The second Chapter contains general remarks which set the stage for the final Chapter. In this third and final Chapter recommendations are made for changes which can be made to create a system where the risk of arbitrariness is as small as possible and it thus answers the final research question, question 4.3.

540. JURISDICTIONS AND RELEVANCE – The first Chapter of this Part, the comparative analysis, focusses on Belgian and UK law. The second Chapter, however, contains general remarks which transcend any one specific jurisdiction. Examples given in this Chapter are drawn from the rest of the book, which means they focus on Belgium and the UK, but the issues touched upon are wider than just the Belgian or UK context and can be relevant for different states around the globe. The third and final Chapter zooms back in on Belgium and provides concrete recommendations for Belgian law.

SECTION I. ACTUS REUS

226. RECRUITMENT – Article 140ter CC criminalises recruitment for terrorist purposes. It was also introduced in 2013, in the wake of the Council of Europe Convention and the update of the Framework Decision. The Article criminalises anybody who recruits another person to commit or contribute to the commission of one of the offences in Article 137, 140 or 140sexies CC, with the exception of Article 137, §3, 6° CC. So this is terrorism sensu stricto, with the exception of threatening terrorism, the offences relating to terrorist groups, and traveling for terrorist purposes (see nos 252–263). The preparatory works talk about recruitment to become a member of a terrorist group. However, membership in itself is not punishable under Article 140 CC (see nos 172–173). The reference to Article 140sexies CC was added aft er its creation in 2016. As was the case for Article 140bis CC, with this addition the Belgian legislature went beyond the obligations of the Directive. The part reading ‘or contribution to the commission’, was added in 2019. This wording is part of the Directive on combatting terrorism, but was not part of the Belgian legislation yet. If necessary, these actions could be prosecuted under Article 140 CC or as aiding and abetting However, since 2016 it was part of the offence in Article 141 CC (see nos 274–276) and to maintain uniformity, the legislature decided to also introduce it in Article 140ter CC. This addition maintained uniformity at the cost of increased overlap.

328. CRIMINAL LAW AND ADMINISTRATIVE LAW – As was the case for Belgium, most restrictions to the right to liberty in the UK take place within the context of the criminal justice system. Contrary to Belgium, however, the UK also has a system of preventatively restricting physical liberty on an administrative law basis. For our purposes the indefinite detention of suspected international terrorists in Belmarsh prison and the subsequent control order and TPIM regimes are the most relevant (see nos 496–519).

329. OVERVIEW OF PART III – This Part of the book aims to do the same as Part II did for Belgium, but now for the UK. This introduction briefl y presents the UK legal system and its context of (counter-)terrorism. The rest of the Part contains three Chapters, the first two of which cover research question 3.11614 and the third of which covers research question 3.2.1615 The first Chapter focusses on criminal law; the second on restrictions of liberty within administrative law; and the third contains a preliminary analysis of the UK rules. The first Chapter is divided into 16 Sections. Section II discusses the definition of terrorism in UK law, Section III focusses on terrorism sensu stricto and Sections IV to XIV on the offences of terrorism sensu lato (see no. 7).

SECTION I. ACTUS REUS

243. RECEIVING TRAINING – Together with the offence of providing instruction or training, the legislature introduced the offence of receiving training for terrorism. It stated that it made operational and logical sense to also criminalise the person who receives the training. The wording of this offence also closely resembles that of the Directive.1262 Article 140quinquies CC criminalises anybody who, in Belgium or abroad, receives instruction or training as described in Article 140quater CC. The Article explicitly refers to Article 140quater CC with regard to the type of instruction or training, so anything said there (see no. 235) is also applicable here.1263 The training can be in person or via the internet for example.1264 Once more, the Criminal Code states this Article is applicable without prejudice to the application of Article 140 CC.

244. SELF-STUDY – The legislature added a new section to Article 140quinquies CC in 2019. While for the Articles 140bis, 140ter and 140quater CC, it added an aggravating circumstance, in Article 140quinquies CC, it added a second offence. The actus reus of this offence is: in Belgium or abroad, acquiring knowledge yourself or educating yourself in the matters referred to in Article 140quater CC. Because of the wording of the first section, it is generally accepted that its scope only covers people receiving training from somebody e

11. NEED FOR LIMITATION – Before going into detail on the relevance, research questions and choice of countries for comparison, we have to delineate the scope of the topic. As explained, there are two main types of counter-terrorism measures. We will first look at which administrative measures fall within the scope and then at which criminal law measures do so. Since there is a myriad of measures on both sides of the equation, certain choices have been made in order to make an in-depth analysis feasible.

12. ONLY ADMINISTRATIVE MEASURES WHICH LIMIT LIBEUTY AND FREEDOM of MOVEMENT – ‘Administrative measures’ is a very broad concept, and we thus need to limit it in order to clearly define the scope of the research. These measures can affect many human rights, such as the right to privacy, the right to a fair trial64 or the freedom of expression. The potential sentences for terrorist precursor offences are however severe. We therefore need to compare them to the most invasive administrative measures: measures that impact the right to liberty of the people subject to them. The discussion on measures like these focusses on two fundamental rights: the right to liberty (Art. 5 ECHR) and the free movement of persons (Art. 2 of the 4th protocol to the ECHR).

13. ONLY MEASURES WITH DIRECT EFFECT ON THOSE RIGHTS – This demarcation of the scope about measures that impact the right to liberty or free movement of the person subject to them still casts a wide net. E.g. the freezing of assets restricts a person's free movement too since they cannot travel anywhere if they do not have access to the funds to do so.

SECTION I. ACTUS REUS

274. EVOLUTION – This is a first generation terrorist offence, introduced in 2003. It was not included in the Framework Decision but in the International Convention for the Suppression of the Financing of Terrorism, signed by Belgium on 27 September 2001. It was not part of the first draft bill of the 2003 statute either, because Article 140, §1 CC already explicitly refers to the financing of terrorism. However, the Council of State noted that Article 140 CC only covered a certain form of financing, namely the financing of a terrorist group. The legislature also wanted to tackle the financing of individual terrorists and therefore added Article 141 CC to plug this gap. Prosecuting the financer for aiding and abetting the (attempted) commission of a terrorist offence sensu stricto was possible, but requires the terrorist offence sensu stricto to at least have been attempted and the preparation offence did not exist yet. The offence introduced in 2003 criminalised ‘[a]ny person who except in the cases referred to in Article 140, provides material resources, including financial assistance, with a view to committing a terrorist offence referred to in Article 137.’ However, in its recommendations, the Financial Action Task Force (FATF) stressed that terrorist financing offences should not require that the funds are linked to a specific terrorist act.

23. ACADEMIC – Terrorism itself is a problem of great relevance. People are afraid and there is no easy solution. The need to minimise the threat of future attacks is a strong incentive to intervene harshly. Governments have proven to be willing to do away with certain human rights protections in order to achieve increased security (or at least the feeling of increased security). Scholars have warned against this both when it comes to administrative measures and when it comes to the preventive use of criminal law. Therefore, we will take into account both systems, compare them in a systematic manner and provide concrete recommendations on which steps to take to minimise the potential for arbitrariness. In doing just this, our research is able to add valuable information to the debate on how best to tackle terrorism in a democratic society based on the rule of law.

24. SOCIETAL AND PRACTICAL – The societal and practical relevance are high as well. In preventing terrorism, governments have sometimes intervened harshly and arbitrarily (e.g. extraordinary renditions, indefinite detention in Guantanamo or Belmarsh). Getting a clear view of which measures are least conducive to arbitrariness and which safeguards can be put in place is essential in order to react appropriately to the threat that terrorism poses. Sometimes human rights protection and security are seen as antithetical, but this is not our view at all.

INTRODUCTION

112. POSSIBLE LIMITATIONS TO LIBERTY – The terrorist offences discussed in Chapters II to X of this Part can lead to a sentence aft er conviction, which would usually be a prison sentence. The exact duration of these prison sentences is discussed in the Chapters covering the different offences, but it is clear that a term of imprisonment constitutes a deprivation of liberty. Alternative sentences are possible as well. These alternatives can also severely limit a person's right to liberty and are discussed in Subsection I of Section I of this Chapter. Another option for Belgian judges is to impose a sentence with postponement of its enforcement or to suspend sentencing all together. This means the perpetrator does not go to prison but his right to liberty can be limited through conditions they have to abide by. These options are discussed in Subsection II of Section I. In Section II, two possible options to extend the limitation of the right to liberty beyond a prison sentence are discussed. Those two options are being placed under the supervision of the Sentence Enforcement Court, which is an additional criminal penalty that is currently in force, and the security measure for the protection of society, which is a security measure proposed in the context of the new Criminal Code. Finally, deprivations of liberty are possible before a conviction as well. These rules on pre-trial detention are discussed below in Chapter XII of this Part (see nos 286–309).

SECTION I. ACTUS REUS

264. PREPARATION – In 2016, the legislature wanted to crack down further on terrorism. In this context, it decided to criminalise preparatory actions, because a terrorist offence is oft en impossible without these actions. The Directive does not contain a similar offence. Indeed, it simply states that criminalising preparatory acts undertaken by a person entering a Member State with the intention to commit or contribute to the commission of terrorism stricto sensu is a way to respond to terrorist travel (see no. 252). Article 140septies CC criminalises anybody who prepares a terrorist offence meant in Article 137 CC, with the exception of Article 137, §3, 6°;. This means every terrorist offence sensu stricto except for threatening terrorism. The second paragraph of the Article includes a list of actions that can be preparation:

• 1° Gathering information on locations, occurrences, events or people which makes it possible to carry out an action on those locations or during those occurrences or events or to cause damage to those people, and observe those locations, occurrences, events or people;

• 2° The possession, purchase, transport or manufacture of or search for objects or substances which are of such a nature that they can be dangerous to other people or cause substantial economic damage;

The need to prevent – The wave of terrorist attacks that were carried out in Europe during the first two decades of the century, has abruptly brought the issue of terrorism to our doorstep. Terrorism has induced fear in the population and governments are trying to control the risk posed by terrorists, who are seen as ‘dangerous people’. The idea of risk management has shift ed the focus from repression to prevention.

Avoiding a large number of people suffering harm is the main reason why terrorist attacks should be prevented, which gives governments an imperative and even an obligation to prevent them. Under the European Convention of Human Rights (ECHR) states have a positive obligation to protect the right to life, to family life, and to a home to the people under their jurisdiction and to protect them against inhuman or degrading treatment and torture. Doing nothing to prevent terror attacks could therefore be a violation of human rights. However, states cannot blindly intervene and the European Court of Human Rights (ECtHR) has emphasised the need to ‘strike a fair balance between the defence of the institutions of democracy in the common interest and the protection of individual rights.’

4. Criminal law and administrative law – If there is a form of consensus on the fact that terrorism should be prevented, the answer to the question of how to effectively do so, is less straightforward. Even just defining terrorism has proven to be a difficult task for states and academics.