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?

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.