7th INTERNATIONAL CRIME AND PUNISHMENT FILM FESTIVAL "PROTECTION OFTHE RULE OF LAW AGAINSTTERRORISM ANDTHE COUPS"

ACADEMIC PAPERS

JII INJERNAßONAL

CRIME & PUNISHMENT

FiLM FESTiVALi FILM FESTIVAL

"HEHlES ICIN ADAlEI'' "JUSTICE FOR All"

3-9 NOVEMBER /3-9 KASIM 2017 iSTANBUL

Editör/Editor: Prof. Dr. Adem SÖZÜER

iCiNADALET JUSTICE~tf www.icapff.com (j;;capff 0 1uscff @;uscff

Tenorism and the n. I . u e ot Law

Table of Content

I.

/I.

III.

IV.

I.

Introduction

Fighting Terrorism d 1 e ege lata

a. Substantive Criminal Law

b. Procedural Measures

c. lntelligence Services p· 1 .

lg Hmg Terrorism de lege " d 1eren a

Conclusion- Safet . . y ln exchange for freed

Introduction om

On 7 April 2015 at 14 22 A

Prof D · . .-. mr. Mare THOMME

b · was arrested at z · oard a plane to lstanbul A unch Airport at Gate G58 1

martyr of himself He ;as ::~.;~:p:~::d todbe on his way to join the IslaJ~;c ;ta7ea:o a:::t to an conv1cted f( . . . e a

Ol vwlatmg the Swiss federai Al-Ull!ver.;Jfy ofZ

unch, Facu/ry fL o aw

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tda ,Uld I Acl. This piecc of legis lati on prohibits any affi lia ti on with thc two mcn ti onc

up (prohibitcd activ itics include supporting or promoting the ir activit ies in any way,

m lud111g assisting wi th propaganda or recruitmenl) .

r pr·parc this presentation, very much like the convicted Jihad trave ller, I intensively

·archcd the tcrms "terrorist attacks", " terrorism", "AI-Qaida" and " lslamic State" on the

1111 •1n·t. 1 al o bookcd thc same plane ticket as A did (Zurich-lstanbul) - so I am glad the

'' t~s riminal Justice Authorities did not stop me in Zurich and I am very happy to be here.

Th.:: casc of A cxemplifies the topic set out in the title of my presentation: on one band, the

thrcat of terrorism and on the other, the protection of privacy under the rule of law. But let's

,tart from the beginning.

In rccent years, Switzerland was untroubled by telTorist attacks. In the late 1960s and in the

1 t70s, howcver, Switzerland was the target of a series of grave terrorist attacks: on 21

1 cbruary 1970 a Swissair Coronado plane on Flight Nr. 330 from Zurich to Tel Aviv crashed

shortly after take-off due to an explosion on board. All 39 passengers and nine crew members

wcrc killcd. Thc Popular Front for the Liberation of Palestine claimed responsibility. A bomb

with an altimeter trigger had been placed in the cargo compartment. Following this and other

attacks, several amendments to the Swiss Criminal Code were introduced. As weil as changes

madc to the substantive law, the procedurallaw was also modified. This step was necessary to

cnsure the effective application ofthe substantive offences against terrorism. This willlay the

groundwork for me to discuss the roJe of substantive criminal law in that fight. I will then

give you a broad overview of what changes can be expected in the near future . Finally, I

would like to elaborate on how the pursuit of collective safety affects individual freedom and

the Rule of Law.

In my presentation 1 use the term the Rule of Law to mean not only every state's duty to

adhere to the principle of legality, but in the broader sense of the German

" Rechtss taatlichkeitsprinzip": every state act not only must rely on a legal basis but must also

comply with constitutional constraints imposed by fundamental rights and freedoms.

II. Fighting Terrorism de lege lata

In Swiss law, the legal standards concerning fighting terrorism can be found in the Criminal

Code, the Criminal Procedure Code and the lntelligence Service Act. There are additional

rules, for example, in the Anti Money Lauadering Act or the Federal Act on Intemational

Mutual Assistance in Criminal Malters, but I will focus solely on measures against terrorism

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ITIIJifffil I"R (3) an procedura l criminal law (b) , and on thc . services (c).

a) S b u stantive c . . nmmal Law

I will discuss . SIX Substantive er· . Immal law meas The offence of pre . ures relevant to terro .·

. pm atory acts I I Sm mtroduced as a react' , regulated in art. 260bis .

Ion to the ter . of the S . . used to target ter. .· ronst attacks of the 1970 Wiss Cnminal

I OII Sm under Swi s. This w and often out-with th ss law, a lthough in practice .t I as the first offence

. e context of I 1as b pumshable who . terrorism. Acco d ' een applied very

, 111 accordance with r mg to this oftl measures and thereb . . a plan, carries out . ence, any

Y 111d1cates tl 1 . spec1 fic 1 1 . robbery ser· lat le mtends to c . ec 111lcal or

, IOus assault, hosta . ommn any of the . targets to buying ge takmg, arson etc ) Tl . IIsted offences b cars, weapons et . . lls can reach tl·

efore the occurrence of I cetera. Thus, the offence of Iom spotting u t le actual attack C . preparator

p to five years' . . . ommitting p. y ac ts applies Impnsonment C Ieparatory a

problematic wl . onvictions und . cts carries a sent len conside . er this art' I ence

i . nng the R I Ic e in t nvestigation w'IJ u e of Law Tl . . erroris t ca

I most likely b . lls IS beca ses (often in the form ofa ti - f e prompted by information rece · use the law enforcem~ . . . p o f) and 3 1 IVed by tl . 111Itial informatiml , s t le intelligence s . le Intelligence se .

can neve b c: erv1ces 11 rv1ce with EC r e ,uJJy chall . ever reveal tl . HR 6 I!I d M enged 111 court Th. . leir sources th' . · oreover . . · Is Situat' ' I

Circumstantial eviden , considenng the fact that th IOn can present a conflict co ce, courts are worki e conviction .

mply with the "b ng at the very ed f IS often based w · . eyond reasonable d " ge o what can s . on

Ith 111 dubio pro reo) oubt requirement ( ti!J be considered to . or are p otentially not . Anotl comply1ng

ler offence that . o· . was mtrod d .

Igamsation (260'er f h uce IS participat · . o t e sw· C . mg 111

organ· . Iss nminal C d ) or Support' Isatwns such as the lt ,. o e . Originally meant mg a criminal

figl t' a Ian mafia to target I 1 mg terrorist groups A . , nowadays the offe . c assical criminal

b . ccordmg t nce Is als e punished who . . o art. 260'er of the S . o a valuable to I . . partiCipates in . Wiss CriminaJ C o m

VIOlent felonies or crimes Tl OI supports a group intending ode, any person will al' b . le organis t' on com . .

Ia y the number of a IOn must be dange mittmg financial o . members and tl . raus. This d . r

to commit violent ac ts sucl le orgamsation ' s purpose Tl anger Is judged inter 1 as murde . le or .

regularly fall t d r, assault bomb. gan1sation m t 111 er this definit' ' 111gs et cetera Ob . us strive

a terrorist group and acts b Ion of a criminal Organisation A . VIOusJy, terrorist groups on ehalf of th. . n y person wJ .

Is group is punishable S 10 Is a member of . upporters who tl .

' OI example,

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nunodation to thc group, manage funds or organi sc wcapons, wi ll bc punished in

\\ay: regardless of whcther a person participated in or just supported a terrorist

p,lh · scntcncc is up to five years' impri sonment. Tbis sentenee on ly applies, of course, if

· ·ifi and more severe crime ean be proven. According to the Supreme Court's

rl. 2601er CC only applies to Mafia-like organisations witb a clear hierarchical

tn1·tur·. Thus, "modern" terrorist groups that are organised in loose networks and terrorists

un • .1lon • do not fall under this definition.

Du to international treaties and as a reaetion to the attaeks of 911 1, the Swiss Pm·liament

n roduced Article 260quinquies CC on the financing of tenorist activities. lt is not clear whether

th1s offence is of any signi ficance in itself, since the financial support of terrorist groups is

lrcad · punisbable under art. 2601er (criminal organisation) of the Swiss Criminal Code.

llo\\CVCr, under the offence of financing terrorism any person who provides any finanees to a

111gle terrorist is punishable . The assets don 't necessarily need to directly support an attack.

1 \CI1 financin g tlights or the rent for a car is considered as financing terrorism. The sentence

~ r financing terro rism is up to five years' imprisonment. This wide seope Jeads to legal

un rtainty ovcr which behaviours may be classified as criminal, especially for eompanies

condueting business in countries where terrorist groups are active, since it might be hard to

for ee whether financial assets may end up in the hands ofthese groups at some point.

A rather old provision in the fights against terror groups is Art. 275ter of the Swiss

riminal Code, which punishes the endangering of the constitutional order by unlawful

associations. This article might, however, become more relevant in the future , when terrorist

attacks are di rected against the state in particular.

A central strategy for fighting organised crime in general and tenorism in particular are

asset forfei ture and confiscation. Forfeiture is seentobe an effective instrument to deprive the

organisation of its assets . Assets that have been or will be used for criminal purposes in the

fu ture ean be seized and confiscated. Switzerland has a distinct article for the forfeiture of

assets belanging to terrorist organisations: based on art. 72 of the Swiss Criminal Code, the

court can seize not only just those assets designated for use in an attack, but also all the assets

the organisation has control over. The assets might belong to individual members of the

organisation or to their families . Art. 72 CC assumes that the organisation has control over

these assets . Therefore, the assets can be seized and it is up to the individualmember to prove

that the seized assets are exclusively bis and not serving criminal purposes. This shift in the

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rru.J. ur. wr. tlUtrc 1 ltull/111~11

burden of proof is, however, highly problematic from a rule of law point of view, as it is a

clear violation of the presumption of innocence (Art. 6 II ECHR).

In addition to the offences in the criminal code, the aforementioned AI-Qaida and IS Act

has been passed. In principle, both groups also fulfil the criteria of a criminal organisation in

the sense of art. 260ter of the Swiss criminal code, but the act applies as Iex special is when

either Al-Qaida or IS are involved. What is problematic here is not so much the article itself

but the very broad application of it by the courts. As mentioned in the example of the "jihad

traveller", flying to Istanbul with the alleged purpose of joining the IS was already interpreted

as supporting a terrorist organisation, which - without any concrete evidence - seems a bit

far-fetched.

All the measures I have just mentioned have one thing in common: they arenot penalising

the terrorist attack itself. lndividuals who commit such an attack can of course be charged for

murder, assault, et cetera. So instead of penalising the act itself under the title of terrorism, the

legislator decided to extend the scope of criminal law in order to be able to intervene before

an attack occurs. This also means that the substantive criminal law does not necessari ly just

aim at terrorists themselves, but also at any person who is supporting them in any way.

Criminal liability keeps shifting away from inflicted hann towards mere attempts and

preparatory acts. Such "early intervention" substantive criminallaw serves as a stepping stone

for imposing coercive and preventive procedural law measures in the supposed context of

fighting terrorism. The substantive criminal law is also used as anchor point for gaining

intemational mutual assistance: for example, making a request to a neighbouring country to

impose surveillance measures on a suspect. Consequently, the number ofyearly convictions ·

relatively low (for 2016: 260bi', 14; 260ter, 13; 260quin, 0) and, due to the broad range o(

behaviours encompassed by the "early intervention" substantive criminal law, the vasl

majority are unrelated to terrorism,

But let's take a Iook at these procedural measures now.

b) Procedural~easures

The Swiss Criminal Procedural Code provides law enforcement authorities with

options for conducting their investigations. On one hand, there are the ordinary measures

remand, the searching of premises, seizure of assets and many others. On the other hand,

enforcement authorities can also conduct surveillance measures, like for example

Observation of public spaccs, thc survcillancc of bank accounts or tclcphoncs, thc use of

undercover investigators or the use of governmenta lmalware.

To make use of these measures, the law enforcement authorities first have to assess that

there is reasonable suspicion that an offence has been committed. In the aftermath of an

attack, these measures can be used to track down suspects. However, to use procedural

mcasures after an attack cannot be the only approach. The goal must be to prevent attacks.

This is whcre the inchoate offences discussed before comc into play. lf there is merely

suspicion that someone is preparing a terrorist attack, these persans are already suspected to

have committed a preparatory offence and can therefore be secretly monitored, searched and

arrested.

In other words, if a person is suspected to be engaged in tenorist activities, law

cnforcement authori ties have widespread possibilities to conduct an effective and discreet

invcstigation long before any attack happens, because the scope of substantive criminal law

ha been extended. However, one key price is a loss of hard evidence. Early intervention

usually means that mens-rea-requirements become increasingly hard to prove. Secondly, there

i. a wide-spread infringement of privacy: the procedural measures apply far beyond the fight

against terrorism, meaning that even potential burglars can be systematically subjected to

. urvcillance. Further, the substantive criminal law has been stretched to prohibit much

cvcryday behaviour, which allows privacy-infringing procedural measures tobe applied in an

ov r-broad number of situations.

But how is it that law authorities become aware of a possible letTorist attack in the first

pla c?

c) J ntclligence Services

f course, it is not only the law enforcement authorities who are keeping an eye on

susp icious individuals. It is the responsibility of the Federal lntelligence Service to gather

111~ rmation about possible terrorist attacks and to monitor potential threats. The intelligence

' n icc is acting independently from any suspicion that a crime has been committed. They

1m I focus on potential threats, based on information they receive from foreign intelligence

cn 1c or from other Swiss authorities and informants.

I cannot go deeper into the measures the ln telligence Service has at its disposal at this

pomt but Iet me say this: the competences of the Federal Intelligence Service have recently

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l'iff.Dr. iur. farc ~ 1 mme11

been extended. Based on the Intelli gence Serv ice Act that came into force on Ist """t"m~ ....

2017, the intelligence service can monitor telephone lines and mail accounts, use systems for

tracking people, wiretap private rooms or use governmental maiware. If the Federal

Intelligence Service discovers any relevant information, it will inform the Iaw enforcement

authorities. This information provides the basis to open a formal investigation and, for

exampie, take the suspect into custody.

The lntelligence Service does not give away its sources. Therefore, this procedure

conflicts with the principles of a fair trial , since the suspect has no chance to challenge the

initiai evidence that Iead to the investigation.

In addition to the federa! intelligence agency, the federal states (cantons) have their

own authorities dealing with potential terrorist threats: in the fight against terrorism several

cantans have introduced their own legisiation which allows their police forces to conduct

secret pre-investigations. In Zurich, for exampie, the police authorities have the same option

for using preventive measures as the law enforcement authorities would have. These measures

extend the scope of the federal criminal law into even earlier phases of the commission of

terrorist crimes. From a rule of law perspective, there is hardly any protection for the

individuais concerned.

111. Fighting Terrorism de lege ferenda

The Swiss Legislator has passed several offences designed to fight terrorism, as we have

examined. Considering the fact that some of these offences are merely of a preparatory and

auxiliary nature, the sentences are relatively high. A person who organises accommodation

for a criminal organisation faces up to five years' imprisonment, even if this person does not

contribute any further to the organisation's cause. Combined with the far-reaching procedural

and preventive measures, the instruments to prevent terrorist attacks can be considered both

effective and tough.

Yet apparently, the numerous existing offences and measures are not enough; just

recently, the government proposed additional offences to fight ten·orism. The current

legislative proposal seeks to double the maximum sentence for participating in or supporting a

terrorist organisation. The proposed sentence of up to ten years' imprisonment is high,

considering the fact that supporting a terrorist organisation doesn't necessarily entai l any

other criminal conduct. So in principle even everyday activities -such as letting an apartment

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or serving food to a pcrson suspcctcd to bc affi liatcd with a tcrrori st organ isation - can be

scntenced heavily.

Furthermore, the government wants to introduce a new offcncc dcaling with so-called

"jihad travellers": people who travel to the Middle East with the alleged purpo.se of .fightin g

for telTOrist organisations. The person who travels abroad and cngages in terronst actto11s can

bc sentenced to up to five years' imprisonment. The same is the case for people who recruit or

train thcse "jihad travellers". This new offence is proposed dcspite the fact that such people

arc already sentenced today, under existing offences . Furthermore, in general, it is highly

questionable whether deterril1g people from returning to their "normal" life by t~1rea~ening to

imprison them when they attempt to return home is the right approach in such a s1tuat10n.

The most promising proposal seems to be an extension of police competencies to take

action against potential terrorists. These measures are totally independent of any criminal

. · t. 1 n y opinion this is a better approach than extendi11g the substa11tive criminal mvcst1ga 1011 . 11 1 , . law for the wrang reasons _ namely, to allow the imposition of coercive and prevent1ve

measures lang before a crime has been committed. In addition to extending police

I · ca1npaign to better prevent radicalisation in general is to be competencics in t 11s area, a

drafted.

These government proposals are currently under review and it is not yet clear which

hangeswill make it into law. However, this much is clear: the govemment wants to provide

law enforcement authorities with even more powers to fight terrorism.

IV. Conclusion: Safety in exchange for freedom

With the recently introduced Jntelligence Service Act, the Swiss people have more or less

oiven up their privacy rights. The questionwill remain the same: will it be worth it? Will it be :r al1y use? While it seems that most states have limited their citizens' privacy rights in

cxchange for increased surveillance, not much safety has been achieved in general. ls lt

possible to achieve safety while still upholding individual freedom? The answer is: probably

not. The best people can hope for in retum for sacrificing their rights to freedom is a vague

hope for increased safety, but there is no guarantee that this will be the case.

In Switzerland, the public seems to agree with the general saying: if you have nothing to hide,

you have nothing to fear. However, this logic falls short for one key reason. The public has no

insight into what infonnation the Intelligence Servicesare looking for, and there is no contro l

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vnem fiii'cvy"J:;-;;::-::::-::-:--:--~---lavc somcthing to fea r.

lt is qu es tionable whether it is I . . - egituna te to punish ev . .

Yeiy early stages of a crime with . . eJ yday behavJOur consti tuting only 1 seveJe pnson sentenc I b

WJen the only purpose ofthis crim' I. . . es. t ecomes even more quesu·,onabllll• t1 . ma IsatJOn Is to pr d Je unposition of coercive and o uce the necessary suspicion to

covert measures Tl retrospective one Tl . Je Standard approach of .· .

· 1e anchor for punish . cummal law is 1 doct · ment Is an act c ·

nne of criminal law evolves . . d . ommitted in the past. The wh I dioun thJs core id Tl oe

use the substantive criminal law t . ea. Je current approach of attempting to h 0 p!event the main m

ope to have shown in my presentation that CJJ" . . o ence from occurring cannot work. I p t · IÜICIJlg pr ·

ro ectmg the rule oflaw is an increas· I I eventive criminal justice whilst still mg y Jard task to achieve.

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Örgüt Faaliyetlerinin Engellenmesi <;:et·~evcsinde Önleme Amm;h ileti~imin Denetlen mesi

Yrd. Do~. Dr. Mehmet Emin ALSAHiN*

1. Gene! Apklamalar

Özel hayatm dokunulmazhgmm bir türü olan haberlqme hürriyeti , 1982

Anayasas1 ' nm 22 nci maddesinde; "Her/ws, haberle}·me hürriyetine sahiptir. Haberle~menin

i:;/i/igi esasl!r" denilmek suretiyle anayasal güvence altma almmi~tlr.

Aym ~ekilde Avrupa insan Haklan Sözle~mesi'nin 8 inci maddesinde, herkesin

haberle~mesine sayg1 gösterilmesi hakki oldugu belirtilmi~tir.

Haberle~me hürriyeti ile hem haberle~me hakkl, hem cle haberle~menin gizliliginin

korunmasi amaylanmaktac!Ir. Haberle~me hürriyeti ancak milll güvenlik, kamu düzeni , sus;

i ~ l eumes inin önlenmesi, genel saghk ve genel ahläkm korunmast veya ba~kalannm hak ve

özgürlüklerinin korunmas1 sebeplerinclen biri veya birka9ma bagh olarak usulüne göre

verilmi~ häkim karan ile ya da gecikmesinde sakmca bultman hallerde kanunla yetkili

kiimmi~ merciin yaZih emri ile engellenebilir ve gizliligine dokunulabilir (A Y. m.22/2).

Buna göre, ki~ilerin haberle~me özgürlügü ve gizliliginin sumlandmlmas1 ancak

kanunda öngörülen hallerde ve yetkili mercilerin verecegi izin dogrultusunda söz konusu

'Mannara Üniversitesi Hukuk Fakiiltes i, Ceza ve Ceza Muhakemesi Hukuku Anabilim Dah

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