The impact of the EUs counter terrorism strategy for the presumption of innocence and the proportionality principle 26 June 2017

Travelling for terrorist purposes 26 June 2017 | Travelling for Terrorist Purposes

Travelling for terrorist purposes 26 June 2017 | Travelling for Terrorist Purposes Artikel 9.2.a Directive Each Member State shall take the necessary measures to ensure that one of the following conducts is punishable as a criminal offence when committed intentionally travelling to that Member State for the purpose of committing, or contributing to the commission of, a terrorist offence as referred to in Article 3, for the purpose of the participation in the activities of a terrorist group with knowledge of the fact that such participation will contribute to the criminal activities of such a group as referred to in Article 4, or for the purpose of the providing or receiving of training for terrorism as referred to in Articles 7 and 8; or

Travelling for terrorist purposes 26 June 2017 | Travelling for Terrorist Purposes Punishability Sanction Recommendation

Travelling for terrorist purposes 26 June 2017 | Travelling for Terrorist Purposes Punishability Sanction Recommendation Iter criminis Vision Standards Attempt Withdrawal

Travelling for terrorist purposes 26 June 2017 | Travelling for Terrorist Purposes Punishability Sanction Recommendation Iter criminis The path between the conception of the offence and the ultimate completion thereof Vision Sanction window Standards Conception | idea to commit an offence Preparatory acts leading up to the offence Start of execution = externalising intent Completion of the terrorist offence Attempt Withdrawal Is “travelling” a “start of execution”?

Travelling for terrorist purposes 26 June 2017 | Travelling for Terrorist Purposes Punishability Sanction Recommendation Iter criminis Objectivism vs subjectivism Clarity of intent: what, where, how, with whom … Vision Standards ? Attempt Withdrawal Inacceptable gap?

Travelling for terrorist purposes 26 June 2017 | Travelling for Terrorist Purposes Punishability Sanction Recommendation Iter criminis International minimum standards UN – RES 2178 (2014) CoE – Additional Prot ETC (2015) EU – Directive (2017) “in proportion with the nature and circumstances of the offence” “taking account of the proportionality principle” “taking account of the presumption of innocence” Vision Standards Attempt Withdrawal

Travelling for terrorist purposes 26 June 2017 | Travelling for Terrorist Purposes Punishability Sanction Recommendation ? Iter criminis Example: Art. 410 sexies Belgian Criminal Code […] shall be punished with imprisonment of 5 to 10 years and with a financial penalty of one hundred to five thousand euro 1° every person leaving the national territory with the intention to commit, in Belgium or abroad, one of the offences listed in articles […] 2° every person entering the national territory with the intention to commit, in Belgium or abroad, one of the offences listed in articles […] Vision Standards Attempt Withdrawal

Travelling for terrorist purposes 26 June 2017 | Travelling for Terrorist Purposes Punishability Sanction Recommendation Iter criminis Desirability of extenting to “Attempting an attempt”? Vision Sanction window Standards Conception | idea to commit an offence Preparatory acts leading up to the offence Start of execution = externalising intent Completion of the terrorist travel Completion of the terrorist offence Attempt Withdrawal When does one start with the execution of “travelling for terrrorist purposes”?

Travelling for terrorist purposes 26 June 2017 | Travelling for Terrorist Purposes Punishability Sanction Recommendation Iter criminis Significant limitation of “ Spontanious Withdrawal” Vision Spontanious Withdrawal Sanction window Standards Conception | idea to commit an offence Preparatory acts leading up to the offence Start of execution = externalising intent Completion of the terrorist travel Attempt Withdrawal What is the use of changing your mind?

Travelling for terrorist purposes 26 June 2017 | Travelling for Terrorist Purposes Punishability Sanction Recommendation Attempt Choice Standards

Travelling for terrorist purposes 26 June 2017 | Travelling for Terrorist Purposes Punishability Sanction Recommendation Attempt Objectivism (facts) Subjectivism (person) Art. 398 BCC Assault and injury subjectivism Choice 3 3 Sanction Standards objectivism 2 Sanction window Start of execution = externalising intent Completion of the terrorist offence

Travelling for terrorist purposes 10 26 June 2017 | Travelling for Terrorist Purposes Punishability Sanction Recommendation Attempt Proportionality Art. 140 sexies BCC Terrorist Travelling Art. 398 BCC Assault and injury 5 subjectivism Choice 3 3 Sanction Standards objectivism 2 Sanction window Start of execution = externalising intent Completion of the terrorist offence

Travelling for terrorist purposes 10 26 June 2017 | Travelling for Terrorist Purposes Punishability Sanction Recommendation Attempt Proportionality Art. 140 sexies BCC Terrorist Travelling Art. 398 BCC Assault and injury Extradition or Surrender 5 subjectivism Choice 3 3 Sanction Standards objectivism 2 Sanction window 1 1 Start of execution = externalising intent Completion of the terrorist offence

Travelling for terrorist purposes 26 June 2017 | Travelling for Terrorist Purposes Punishability Sanction Recommendation 10 ? 5 3 3 2 1 1 “Absurd disproportionality in the national sanction scales should be dealt with and could be linked to the development of an EU framework for attempted offences “Dare to question the punishability of travelling without detailed information about the intent”