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EU: Restricted Eurojust report highlights use of intelligence in terrorism court cases across the EU

27 March 2017

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Restricted Eurojust report highlights use of intelligence in terrorism court cases across the EU
27.3.17
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A restricted report prepared in November 2016 by Eurojust, the EU's judicial cooperation agency, provides a detailed overview of the ongoing response to "foreign terrorist fighters" in law and jurisprudence, focusing in particular on the use of intelligence in legal proceedings and the prosecution of women who have travelled to conflict zones where terrorist groups are active.

See: Eurojust, Foreign Terrorist Fighters: Eurojust's Views on the Phenomenon and the Criminal Justice Response - Fourth Eurojust Report (November 2016) (1/R/2016, RESTRICTED, November 2016, 13MB pdf)

Also just published: Counter-Terrorism Coordinator: how should the authorities respond to children accompanying "Foreign Terrorist Fighter Returnees"?

National laws

The report opens with a section on new national laws looking at the "special procedural law provisions" established in Belgium, the Czech Republic and France - which has established FIJAIT (fichier judiciaire national automatisé des auteurs d' infractions terroristes), "an automated database of perpetrators of terrorist offences [in which] individuals are listed for 20 years" - and notes "special and emergency powers" established in Germany, Spain, the Netherlands, the UK, Italy, Slovakia and Norway.

Slovakian powers include "provisions allowing for courts to impose pre-trial detention for up to five years on suspects of terrorist offences without formally stipulating the reasons therefor."

The report should be seen in the context of a recent Amnesty International publication warning of the dangers of new anti-terrorism powers that are undermining individual rights through the reduction or removal of procedural rights, imprecise and over-broad definitions of terrorism and other legal and administrative novelties.

Best practices

The following section, on "challenges and best practices in investigations and prosecutions," examines "only one issue - the admissibility of (foreign) intelligence as evidence for criminal proceedings under the respective domestic legal frameworks," and warns that "Member States seem to be followed different approaches".

The section includes a detailed overview of the 2016 'Nautilus' case in Switzerland, "in which, for the first time, a criminal prosecution was triggered by and eventually based upon a report from the Swiss internal intelligence agency (DAP)."
In the case, according to Eurojust's report, two Iraqi brothers living in Switzerland were jailed for over three years for participating in a criminal organisation and forging official foreign documents.

The brothers appealed the judgment on the grounds that information used against them had been illegally obtained, through surveillance by foreign intelligence agencies "or other illegal methods of collecting evidence."

The Swiss Federal Court ruled in the appeal case that there was "no need to compel the testimony of any of the sources used by the DAP (and later NDB) to prepare its report."

The court held that "the information found in the DAP was presumed to have been legally obtained," and that "the identity of a foreign security agency must remain secret, unless it consents to the disclosure or the disclosure would not threaten the continuation of collaboration with it."

Lessons learned

A section looking at "lessons learned" from the jurisprudence on foreign fighters examines the legal situation in different EU Member States regarding women who travel to conflict zones to marry individuals fighting for terrorist groups.

According to the report, in Belgium, travelling to a conflict zone is not itself sufficient to demonstrate material support for a terrorist group, but "providing support to a fighter in any form can be considered as participation... establishing that the woman shared the ideology of the terrorist group would suffice."

In German law, "the mere fact of travel to an operational area of a terrorist organisation for the purpose of marry a terrorist fighter... does not generally constitute a criminal act," and the report states that this is broadly reflected in French jurisprudence.

However, French law reflects the fact that as women are increasingly involved in "consolidating ISIS by contributing to children's education and supporting ISIS's projects and activities, women who went to Syria or Iraq are likely, like men, to be prosecuted for their participation in terrorist activities."

Similarly, in the Netherlands, courts have made use of reports about life in the "caliphate", including one by academic researchers which states that "even if persons fulfil roles other than fighters... their activities facilitate the functioning of terrorist organisations; therefore, this facilitation could be seen as participation in the armed conflict."
Subsequent sub-sections examine:

• jurisprudence on terrorist financing;
• the distinction between terrorism and war crimes (based on a case in Sweden);
• "procedural and other issues", including the use of intelligence as evidence in Spain;
• information provided by foreign intelligence agencies;
• the use of trojans by Italian authorities against suspects' "smartphone or other portable device";
• interception of telecommunications outside the scope of criminal proceedings (France);
• the relation between UN lists of terrorist organisations and prosecutions at national level (Belgium and Spain);
• sentences in absentia (Belgium, France and the Netherlands), the severity of penalties (the UK and Sweden).

De-radicalisation of foreign fighters

The report moves on to look at "de-radicalisation, disengagement and rehabilitation measures in the judicial context". Sentencing in recent cases has involved "custodial sentences as well as alternatives to imprisonment", and an examination of cases involving the latter gives rise to the argument that there is a "growing tendency" in some Member States' courts to attempt to address:

"(religious) beliefs and ideologies that lead to terrorism rather than behavioural factors. The courts appear to be correcting the misinterpretation of Islamic concepts by tackling the misunderstood aspects of Islam that are used to legitimise violence."

The report also notes that neither Denmark nor Sweden consider alternatives to imprisonment in cases involving foreign terrorist fighters; the report offers further examination of "de-radicalisation and support programmes in the community"; the management of "terrorist and extremist offenders in prisons"; and "measures regarding returnees" such as the confiscation of passports.

The third section of the report deals with "criminal justice response: common approach" and opens by examining provisions of the new Terrorism Directive, which was agreed in February 2017 (the report dates from November 2016).

Cooperation and information exchange

It then examines "enhanced cooperation and information exchange" amongst national and EU authorities:

"Operational cooperation has been strengthened over the past months, enabling real-time contacts between national authorities from different countries and seeking an effective common approach towards terrorism. Also, JITs [Joint Investigation Teams] have been effectively used to reinforce national investigations of terrorism cases, including with third States."

Eurojust has, according to its own report, been increasingly involved in coordinating exchanges of information and the facilitation of legal requests between Member States.

The report also includes an examination of the "links between terrorism and organised crime". In 2015, Europol argued that such links are "a limited phenomenon", but Eurojust suggests that "Member States increasingly report links between terrorism and serious and organised crime, with particular regard to illicit trafficking of firearms and explosives, illegal immigrant smuggling and document counterfeiting."

Eurojust has also "continued reinforcing its operational and strategic cooperation with the USA, Turkey and the Western Balkans in relation to the FTF [foreign terrorist fighter] phenomenon," and Eurojust's June 2016 meeting on terrorism included representatives from the USA, Turkey, Montenegro, Albania, Serbia and Bosnia and Herzegovina.

In this context, the judicial agency "calls for a wider use of the possibility provided by Article 10 of the [Terrorist Finance Tracking Programme] Agreement," which allows "any law enforcement, public security, or counter-terrorism authority of a Member States, Europol or Eurojust to request from the [US authorities] a search for relevant information obtained through the TFTP".

New cooperation agreements and contact points have also been established in the last two years with non-EU states: Montengro, Ukraine and Moldova in the case of the former, and wiht regard to the latter in Palestine, Lebanon, Jordan, Algeria, Saudi Arabia, Iraq and - "informally" - Libya.

The report finishes with a set of conclusions and also includes an annex that sets out recent changes or proposed amendments to terrorism legislation in eleven countries across the EU: Belgium, Bulgaria, the Czech Republic, Denmark, Finland, France, Italy, Lithuania, Hungary, Slovakia, Sweden and Norway. It also includes a section on "legislation and action plans tackling radicalisation".

Further reading

Counter-Terrorism Coordinator: how should the authorities respond to children accompanying "Foreign Terrorist Fighter Returnees"?, Statewatch News Online, March 2017

Eurojust continues work on "judicial response to the phenomenon of foreign terrorist fighters", Statewatch News Online, June 2016

Council of the European Union: Information sharing in the counter-terrorism context: Use of Europol and Eurojust, Statewatch News Online, June 2016

EUROJUST: Foreign Fighters: Eurojust’s Views on the Phenomenon and the Criminal Justice Response: Updated Report, Statewatch News Online, February 2015

EU seeks increased surveillance of travel and social media to deal with "foreign fighters", Statewatch News Online, July 2013

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