Combating terrorism in the Netherlands: Implementation of the Framework decision on terrorism

Professor Emeritus Ties Prakken

 After 9/11 the Counsel on Justice and Home Affairs reacted within a few weeks with a draft framework decision on terrorism. This could be done so quickly because it was already on the shelves but up to that time, politically unfeasible. Untill that moment, unlike in many other European countries there was no special legislation against terrorism in the Netherlands, no definition of terrorism and no special procedures. The only thing was the European Convention on combating terrorism that originated from the seventies, when the RAF in Germany the Brigate Rossi in Italy and the IRA on the British Isles were active. But in that treaty the word terrorism was only in the title and not defined at all. At that time we were against it because it labeled pre-eminently political actions beforehand as non-political. But after all it only said that in extradition cases, the political exception that was not applicable were cases of certain crimes such as kidnapping and skyjacking. Since the European arrest warrant, there is no longer extradition  within Europe, and we need not bother about this treaty.

We have to be concerned about the 2002 framework decision on terrorism and its implications for the EU member states. In the Netherlands the tone is set since the implementation of that framework decision in our legislation. The Act on terrorist offences, in force since 2004 goes much further than required by the framework decision.

In the framework decision we read: Each Member State shall take the necessary measures to ensure that terrorist offences include the following list of intentional acts which, given their nature or their context, may seriously damage a country or an international organization, as defined, as offences under national law, where committed with the aim of:

(i) seriously intimidating a population, or

(ii) unduly compelling a Government or international organization to perform or abstain from performing any act, or

(iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organization: (follows a list of offences to be included).

In the Dutch anti terrorism Act ‘seriously intimidating a population’ has become: ‘a population or part of the population’. The aim of this addition was to include certain forms of political activism like the animal liberation movement.

But there is much more in the Act on terrorist offences, also not required by the framework decision. To begin with, the criminalisation of recruitment for the armed struggle . Here is  meant is of course, the jihad.  But the participants of a training camp of the PKK are prosecuted inter alea on the basis of this section.

Finally there is a huge extension of criminal conspiracy. Originally only conspiracy against the state or the royal family was punishable, but now also conspiracy to offences like arson and other forms of creating danger is punishable if committed with a terrorist intention. Criminal conspiracy means the criminalization of making an agreement and that means necessarily the investigation by pro-active police methods and predominant participation of the secret services in that investigation.

The bill on protected witnesses

The legal definition of terrorist intention made it possible to create special investigating rules and special procedures for those terrorist offences. Almost adopted is a bill on protected witnesses. With a protected witness is meant an agent of the secret services.

The reasons for this bill were two trials against supposed Muslim terrorists that resulted in an acquittal and in the subsequent frustration of the Minister of Justice.

The Rotterdam regional court has acquitted some terrorist defendants because the only suspicion came from information by the secret services. The point of view of the defense was of course that it was unable to control the legality of the investigation. The defense opposed  the use of an undercover agent by the secret services without respecting the legal requirements that are to be met by the police when they make use of an undercover agent and without any other legal basis as required by article 8 of the European Convention on Human Rights (ECHR). Also there was no opportunity at all to interrogate the agents as witnesses, even not under the procedure for threatened witnesses that is in our code of criminal procedure. The only witness that could be interrogated was the Director of the Secret Services, who successfully invoked his obligation of secrecy. Therefore the procedure was not in conformity with article 6 of the ECHR. The court had  a different approach and emphasized the difference between police investigation and the collecting of information by the secret services. The latter is not to be controlled by the judiciary and for that reason the police that   received the information from the services, has to commence its own investigation in order to confirm the suspicion in a way that might be controlled by the defense and by the judge. As the police and the prosecutor in fact did not add any investigation to what the services had done, and the investigating judge ordered a house search and the arrest of the suspects on the only grounds provided by the secret services, the origin of the suspicion was not controllable and for that reason the defendants were acquitted. The minister of Justice reacted in the media by saying that in case this decision would not be redressed by the Court of Appeals, he would propose new legislation.

Although the Court of Appeals did convict the accused, new legislation was introduced anyway. The reason must be that also the Court of Appeals  pronounced its doubts about the possibility of using information of the secret services as evidence. In this case the court did not need the information as evidence, being the discussion only on the origin of the initial suspicion against the accused.

A new bill therefore has been introduced that makes it possible to use this kind of information as evidence, with the possibility that an investigating judge may interrogate an agent of the secret services on request of but in the absence of the Defense Counsel, who   may only  ask written questions. The worst of this act is that it is finally up to the secret services to decide whether the statement of its agent before the investigating judge is to be disclosed or not. In addition, a specialized Investigating Judge will be introduced in accordance with the French model. This is not attractive at all because   anti-terrorist judges are obviously closer to the secret services than to the judiciary.

An association of judges has advised critically on this bill on special procedures for terrorist crimes and a member of the Supreme Court has written – on personal title,   – a short article in a newspaper and in a juridical revue that was very critical about the anti-terrorist legislation in general. So there is some hope for counterbalance from the Judiciary.

Other special procedural law in the making

In September 2004 further procedural legislation was announced by the Minister of Justice in order to facilitate the investigation and prosecution of terrorist offences.

The most important features of this bill are:

The applying of proactive police methods and coercive means on the basis of a lower degree of suspicion than normally required.

In a stage were even no suspicion at all has yet risen, the connection of databases is allowed.

But the most extreme proposal is the arrest for two weeks on a lower degree of suspicion than normally required and the continuation of pretrial detention for two years without precise specification of the charge and without full disclosure. This sounds like secret political processes without any effective defense being allowed.

The criminalization of glorifying or denying serious (terrorist) crime

This proposal, which is an obvious attempt to criminalize not only terrorism but also the debate on terrorism, and therefore is an attack on the freedom of speech,  does  not have much chance anymore since the conservative Liberal Party finally remembered its liberal ideology and announced to vote against it.

The position of the judiciary

Whereas all this legislation (with an exception of the Act on Terrorist Offences that is already in force) is still in the making, some trials against supposed terrorists are going on under the old law. Recently a certain Samir A.  was prosecuted for   preparing   a criminal attack against the building of the secret services in the Hague, Schiphol airport and the nuclear power station of Borsele, but acquitted by the regional court and the Court of Appeals with the motivation that he   surely had wrong intentions but that his undertakings were so primitive and in no way elaborated that there was no real danger is his manner of acting. The Court of Appeals explicitly refused to condemn a person on the sole basis of his criminal intentions, because this would be against the will of our legislator.

Some of our current MP’s however immediately pronounced as their opinion that the law had to be changed in order to avoid acquittals like this in the future.

Administrative measures

It is not only criminal law that is in the making for combating terrorism, also administrative measures are being prepared. The first place is in the sphere of aliens law. ‘Radical’ persons will be refused  entry to the country,  even for a very short time, for instance, to give a lecture. An imam will be expelled today.

Legislature is prepared to make it possible to oblige a person who is not suspect of any offence to report to the police regularly or to give him an injunction, forbidding him to appear in a certain place or area.

Conclusions

Politicians are bidding against each other to show that they are   toughest against terrorism and crime, and they are extending terrorism towards radicalism. In a letter from the Minister of Justice to the Parliament of January 2005 we cannot only read that the budgets of all services concerned with terrorism will roughly be doubled, but also that radicalism is the target of government policy, precisely violent animal activism, right wing violence and radical anti-globalization. In practice this means that a movement that had always been left alone in the Netherlands such as the Kurdish PKK is by now labeled terrorist. A trial is going on against the participants of an ideological training camp somewhere on a camping in the countryside. Until now the judiciary is sometimes moderate and jurists in general are counterbalancing more or less. But civil rights are seriously under attack.