Criminal Justice (Terrorist Offences) Act 2005

• “(1) A European arrest warrant shall, in so far as is practicable, be in the form set out in the Annex to the Framework Decision.

• (1A) Subject to subsection (2A), a European arrest warrant shall specify—

  • (a) the name and the nationality of the person in respect of whom it is issued,

  • (b) the name of the judicial authority that issued the European arrest warrant, and the address of its principal office,

  • (c) the telephone number, fax number and email address (if any) of that judicial authority,

  • (d) the offence to which the European arrest warrant relates, including the nature and classification under the law of the issuing state of the offence concerned,

  • (e) that a conviction, sentence or detention order is immediately enforceable against the person, or that a warrant for his or her arrest, or other order of a judicial authority in the issuing state having the same effect, has been issued in respect of the offence,

  • (f) the circumstances in which the offence was committed or is alleged to have been committed, including the time and place of its commission or alleged commission, and the degree of involvement or alleged degree of involvement of the person in the commission of the offence, and

  • (g) (i) the penalties to which that person would, if convicted of the offence specified in the European arrest warrant, be liable,

    • (ii) where that person has been convicted of the offence specified in the European arrest warrant but has not yet been sentenced, the penalties to which he or she is liable in respect of the offence, or

    • (iii) where that person has been convicted of the offence specified in the European arrest warrant and a sentence has been imposed in respect thereof, the penalties of which that sentence consists.”,

• (b) the insertion of the following subsection:

• “(2A) If it is not practicable for any of the information to which subsection (1A) (inserted by section 72(a) of the Criminal Justice (Terrorist Offences) Act 2005) applies to be specified in the European arrest warrant, it may be specified in a separate document.”,

and

• (c) the deletion of subsection (3).

73. Amendment of section 12 of Act of 2003.

73.—Section 12 of the Act of 2003 is amended by—

• (a) the substitution, in subsection (2), of “issuing judicial authority or the issuing state, as may be appropriate,” for “issuing judicial authority”,

• (b) the insertion of the following subsection:

• “(3A) An undertaking required under this Act may be set out in the European arrest warrant or in a separate document.”,

• (c) the substitution of the following subsection for subsection (4):

• “(4) Notwithstanding subsection (3), the issuing judicial authority shall be deemed to have complied with subsection (1)—

  • (a) if facsimile copies of—

    • (i) the European arrest warrant, and

    • (ii) where appropriate, a translation thereof,

    are transmitted by or on behalf of the issuing judicial authority to the Central Authority in the State, and

  • (b) where the Minister makes regulations under subsection (10), there is, in relation to those facsimile copies, compliance with the regulations.”,

• (d) the substitution of the following subsection for subsection (5):

• “(5) Notwithstanding subsection (3), the issuing judicial authority or the issuing state, as may be appropriate, shall be deemed to have complied with subsection (2)—

  • (a) if facsimile copies of—

    • (i) such undertakings as are required under this Act, and

    • (ii) where appropriate, translations thereof,

    are transmitted by it or on its behalf to the Central Authority in the State, and

  • (b) where the Minister makes regulations under subsection (10) there is, in relation to those facsimile copies, compliance with the regulations.”,

• (e) the substitution, in subsection (6), of “issuing judicial authority or the issuing state, as may be appropriate,” for “issuing judicial authority” in each place that it occurs,

• (f) the substitution, in paragraph (b) of subsection (8), of “an issuing judicial authority or the issuing state, as may be appropriate,” for “a judicial authority in the issuing state”,

• (g) the insertion, in subsection (8), of the following new paragraph:

• “(c) a document referred to in section 11(2A) (inserted by section 72(b) of the Criminal Justice (Terrorist Offences) Act 2005),”,

and

• (h) the substitution of the following subsection for subsection (11):

• “(11) In this section ‘European arrest warrant’ includes a document referred to in section 11(2A) (inserted by section 72(b) of the Criminal Justice (Terrorist Offences) Act 2005).”.

74. Amendment of section 14 of Act of 2003.

74.—Section 14 of the Act of 2003 is amended by—

• (a) the substitution of the following subsection for subsection (6):

• “(6) Notwithstanding subsection (5), the High Court may order the release from custody of a person remanded in custody under this section if, at any time after the person has been so remanded, it appears to the High Court that a European arrest warrant has not been issued in respect of the person.”,

and

• (b) the substitution of the following subsection for subsection (7):

• “(7) Where, in relation to a person who has been remanded in custody under subsection (3), a European arrest warrant is transmitted to the Central Authority in the State in accordance with section 12—

  • (a) that person shall be brought before the High Court as soon as may be, and

  • (b) the European arrest warrant, or a facsimile or true copy thereof, shall be produced to the High Court,

  and the High Court shall, if satisfied that the person is the person in respect of whom the European arrest warrant was issued—

  - (i) remand the person in custody or on bail (and for that purpose the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence), and
  
  - (ii) fix a date for the purposes of section 16 (being a date that falls not later than 21 days after the date of the person's arrest).”,
  

• (c) the substitution, in subsection (10), of the following definition for the definition of “Schengen alert”:

“ ‘Schengen alert’ means a document that—

• (a) indicates that a European arrest warrant has been issued by a judicial authority in a Member State in respect of the person named in the document on such date as is specified in the document,

• (b) has been transmitted by electronic means by or on behalf of the judicial authority concerned or the issuing state concerned, as may be appropriate, to the Garda Síochána, using equipment designed, or intended for use, for the purposes of the Schengen Information System, and

• (c) is capable of being viewed by the Garda Síochána by means of equipment designed, or intended for use, for those purposes;”.

75. Amendment of section 15 of Act of 2003.

75.—Section 15 of the Act of 2003 is amended by—

• (a) the substitution of the following subsections for subsections (1) and (2):

• “(1) Where a person is brought before the High Court under section 13, he or she may consent to his or her being surrendered to the issuing state and, if he or she so consents, the High Court shall—

  • (a) if the European arrest warrant, or a facsimile or true copy thereof, has been endorsed in accordance with section 13 for execution of the warrant,

  • (b) if it is satisfied that—

    • (i) the person voluntarily consents to his or her being surrendered to the issuing state concerned and is aware of the consequences of his or her so consenting, and

    • (ii) the person has obtained, or has been afforded the opportunity of obtaining or being provided with professional legal advice before consenting to his or her surrender,

  • (c) if it is not required, under section 21A, 22, 23 or 24 (inserted by sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and

  • (d) if the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto),

  make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her.

• (2) Where a person is brought before the High Court under section 14, he or she may consent to his or her being surrendered to the issuing state and, if he or she so consents, the High Court shall—

  • (a) upon production to the High Court of the European arrest warrant or facsimile or true copies thereof,

  • (b) if it is satisfied that—

    • (i) the person voluntarily consents to his or her being surrendered to the issuing state concerned and is aware of the consequences of his or her so consenting, and

    • (ii) the person has obtained, or has been afforded the opportunity of obtaining or being provided with, professional legal advice and representation before consenting to his or her surrender,

  • (c) if it is not required, under section 21A, 22, 23 or 24 (inserted by sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and

  • (d) if the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto),

  make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her.”,

• (b) the substitution of the following subsection for subsection (3):

• “(3) An order under this section shall take effect upon the expiration of 10 days beginning on the date of the making of the order or such earlier date as the High Court, upon the request of the person to whom the order applies, directs.”,

• (c) the substitution, in subsection (5), of the following paragraph for paragraph (a):

• “(a) the order takes effect in accordance with subsection (3) (inserted by section 75(b) of the Criminal Justice (Terrorist Offences) Act 2005), or”,

and

• (d) the substitution of the following subsection for subsection (7):

• “(7) A person (to whom an order for the time being in force under this section applies) who is not surrendered to the issuing state in accordance with subsection (5) shall be released from custody immediately upon the expiration of the 10 days referred to in that subsection unless, upon such expiration, proceedings referred to in subsection (6) are pending.”.

76. Date of hearing in relation to European arrest warrant.

76.—Section 16 of the Act of 2003 is amended by—

• (a) the substitution of the following subsection for subsection (1):

• “(1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9) the High Court may, upon such date as is fixed under section 13 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that—

  • (a) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,

  • (b) the European arrest warrant, or a facsimile or true copy thereof, has been endorsed in accordance with section 13 for execution of the warrant,

  • (c) where appropriate, an undertaking under section 45 or a facsimile or true copy thereof is provided to the court,

  • (d) the High Court is not required, under section 21A, 22, 23 or 24 (inserted by sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and

  • (e) the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).”,

• (b) the substitution of the following subsection for subsection (2):

• “(2) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9), the High Court may, upon such date as is fixed under section 14 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that—

  • (a) the European arrest warrant and, where appropriate, an undertaking under section 45, or facsimile or true copies thereof are provided to the court,

  • (b) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,

  • (c) the High Court is not required, under section 21A, 22, 23 or 24 (inserted by sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and

  • (d) the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).”,

• (c) the insertion of the following subsection:

• “(2A) Where the High Court does not—

  • (a) make an order under subsection (1) on the date fixed under section 13, or

  • (b) make an order under subsection (2) on the date fixed under section 14,

  it may remand the person before it in custody or on bail and, for those purposes, the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence.”,

• (d) the substitution of the following subsection for subsection (3):

• “(3) An order under this section shall take effect upon the expiration of 15 days beginning on the date of the making of the order or such earlier date as the High Court, upon the request of the person to whom the order applies, directs.”,

• (e) the substitution, in subsection (5), of the following paragraph for paragraph (a):

• “(a) the order takes effect in accordance with subsection (3) (inserted by section 76(d) of the Criminal Justice (Terrorist Offences) Act 2005), or”,

• (f) the substitution of the following subsection for subsection (7):

• “(7) A person (to whom an order for the time being in force under this section applies) who is not surrendered to the issuing state in accordance with subsection (5) shall be released from custody immediately upon the expiration of the 10 days referred to in that subsection unless, upon such expiration, proceedings referred to in subsection (6) are pending.”,

and

• (g) the substitution—

• (i) in subsection (9), of “Subsections (7) and (8) shall not apply if” for “Subsection (8) shall not apply if”,

• (ii) in paragraph (a)(ii) of that subsection, of “subsection (7) or (8)” for “subsection (8)”, and

• (iii) in paragraph (b)(ii) of that subsection, of “subsection (7) or (8)” for “subsection (8)”,

and the said subsection (9) as so amended is set out in the Table to this paragraph.

TABLE

(9) Subsections (7) and (8) shall not apply if— (a) (i) the person has been sentenced to a term of imprisonment for an offence of which he or she was convicted in the State, (ii) on the date on which he or she would, but for this subsection, be entitled to be released under subsection (7) or (8), all or part of the term of imprisonment remains unexpired, and (iii) the person is required to serve all or part of the remainder of that term of imprisonment, or (b) (i) the person has been charged with or convicted of an offence in the State, and (ii) on the date on which he or she would, but for this paragraph, be entitled to be released from custody under subsection (7) or (8), he or she is required to be in custody by virtue of having been remanded in custody pending his or her being tried, or the imposition of sentence, in respect of that offence.

77. Amendment of section 18 of Act of 2003.

77.—Section 18 of the Act of 2003 is amended by the insertion of the following subsection:

• “(2A) Where the High Court decides to postpone a person's surrender under this section, it may remand the person in custody or on bail and, for that purpose, the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence.”.

78. Amendment of section 20 of Act of 2003.

78.—Section 20 of the Act of 2003 is amended—

• (a) in subsection (1), by the substitution of “issuing judicial authority or the issuing state, as may be appropriate,” for “issuing judicial authority”, and

• (b) in subsection (2), by the substitution of “issuing judicial authority or the issuing state, as may be appropriate,” for “issuing judicial authority”.

79. Refusal of surrender where no decision to prosecute.

79.—The Act of 2003 is amended by the insertion of the following section:

“21A.—(1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state.

• (2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.”.

80. Rule of specialty.

80.—The Act of 2003 is amended by the substitution of the following section for section 22:

“22.—(1) In this section, except where the context otherwise requires, ‘offence’ means, in relation to a person to whom a European arrest warrant applies, an offence (other than an offence specified in the European arrest warrant in respect of which the person's surrender is ordered under this Act) under the law of the issuing state committed before the person's surrender, but shall not include an offence consisting, in whole, of acts or omissions of which the offence specified in the European arrest warrant consists in whole or in part.

• (2) Subject to this section, the High Court shall refuse to surrender a person under this Act if it is satisfied that—

  • (a) the law of the issuing state does not provide that a person who is surrendered to it pursuant to a European arrest warrant shall not be proceeded against, sentenced or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence, and

  • (b) the person will be proceeded against, sentenced, or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence.

• (3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to—

  • (a) proceed against him or her,

  • (b) sentence or detain him or her for a purpose referred to in subsection (2)(a), or

  • (c) otherwise restrict him or her in his or her personal liberty,

  in respect of an offence, unless the contrary is proved.

• (4) The surrender of a person under this Act shall not be refused under subsection (2) if—

  • (a) upon conviction in respect of the offence concerned he or she is not liable to a term of imprisonment or detention, or

  • (b) the High Court is satisfied that, where upon such conviction he or she is liable to a term of imprisonment or detention and such other penalty as does not involve a restriction of his or her personal liberty, the said other penalty only will be imposed if he or she is convicted of the offence.

• (5) The surrender of a person under this Act shall not be refused under subsection (2) if it is intended to impose in the issuing state a penalty (other than a penalty consisting of a restriction of the person's liberty) including a financial penalty in respect of an offence of which the person claimed has been convicted, notwithstanding that where such person fails or refuses to pay the penalty concerned (or, in the case of a penalty that is not a financial penalty, fails or refuses to submit to any measure or comply with any requirements of which the penalty consists) he or she may, under the law of the issuing state be detained or otherwise deprived of his or her personal liberty.

• (6) The surrender of a person under this Act shall not be refused under subsection (2) if the High Court—

  • (a) is satisfied that—

    • (i) proceedings will not be brought against the person in respect of an offence,

    • (ii) a penalty will not be imposed on the person in respect of an offence, and

    • (iii) the person will not be detained or otherwise restricted in his or her personal liberty for the purposes of an offence,

    without the issuing judicial authority first obtaining the consent thereto of the High Court,

  • (b) is satisfied that—

    • (i) the person consents to being surrendered under section 15,

    • (ii) at the time of so consenting he or she consented to being so proceeded against, to such a penalty being imposed, or being so detained or restricted in his or her personal liberty, and was aware of the consquences of his or her so consenting, and

    • (iii) the person obtained or was afforded the opportunity of obtaining, or being provided with, professional legal advice in relation to the matters to which this section relates,

  • (c) is satisfied that—

    • (i) such proceedings will not be brought, such penalty will not be imposed and the person will not be so detained or otherwise restricted in his or her personal liberty before the expiration of a period of 45 days from the date of the person's final discharge in respect of the offence for which he or she is surrendered, and

    • (ii) during that period he or she will be free to leave the issuing state,

    except where having been so discharged he or she leaves the issuing state and later returns thereto (whether during that period or later), or

  • (d) is satisfied that such proceedings will not be brought, such penalty will not be imposed and the person will not be so detained or restricted in his or her personal liberty unless—

    • (i) the person voluntarily gives his or her consent to being so proceeded against, such a penalty being imposed, or being so detained or restricted in his or her personal liberty, and is fully aware of the consequences of so doing,

    • (ii) that consent is given before the competent judicial authority in the issuing state, and

    • (iii) the person obtains or is afforded the opportunity of obtaining, or being provided with, professional legal advice in the issuing state in relation to the matters to which this section relates before he or she gives that consent.

• (7) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to—

  • (a) proceedings being brought against the person in the issuing state for an offence,

  • (b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person's liberty, in respect of an offence, or

  • (c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence,

  upon receiving a request in writing from the issuing state in that behalf.

• (8) The High Court shall not give its consent under subsection (7) if the offence concerned is an offence for which a person could not by virtue of Part 3 or the Framework Decision (including the recitals thereto) be surrendered under this Act.”.

81. Surrender of person by issuing state to other Member State.

81.—The Act of 2003 is amended by the substitution of the following section for section 23:

“23.—(1) In this section, except where the context otherwise requires—

‘offence’ means, in relation to a person to whom a European arrest warrant applies, an offence under the law of a Member State (other than the issuing state) committed before the person's surrender to the issuing state under this Act; and

‘Member State’ means a Member State other than the issuing state.

• (2) Subject to this section, the High Court shall refuse to surrender a person under this Act if it is satisfied that—

  • (a) the law of the issuing state does not provide that a person who is surrendered to it pursuant to a European arrest warrant shall not be surrendered to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State in respect of an offence, and

  • (b) the person will be surrendered to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State in respect of an offence.

• (3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to surrender him or her to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State in respect of an offence, unless the contrary is proved.

• (4) The surrender of a person under this Act shall not be refused under subsection (2) if the High Court—

  • (a) is satisfied that the issuing judicial authority will not surrender the person to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State, without first obtaining the consent thereto of the High Court,

  • (b) is satisfied that—

    • (i) the person consents to being surrendered under section 15,

    • (ii) at the time of so consenting he or she consented to being surrendered by the issuing state to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State, and was aware of the consquences of his or her so consenting, and

    • (iii) the person obtained or was afforded the opportunity of obtaining, or being provided with, professional legal advice in relation to the matters to which this section relates,

  • (c) is satisfied that—

    • (i) the person will not be surrendered by the issuing state to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State, before the expiration of a period of 45 days from the date of the person's final discharge in respect of the offence for which he or she is surrendered under this Act, and

    • (ii) during that period he or she will be free to leave the issuing state,

    except where having been so discharged he or she leaves the issuing state and later returns thereto (whether during that period or later), or

  • (d) is satisfied that the person will not be surrendered to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State unless—

    • (i) the person voluntarily gives his or her consent to being so surrendered and is fully aware of the consequences of his or her so doing,

    • (ii) that consent is given before the competent judicial authority in the issuing state, and

    • (iii) the person obtains or is afforded the opportunity of obtaining, or being provided with, professional legal advice in the issuing state in relation to the matters to which this section relates before he or she gives that consent.

• (5) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to the person being surrendered by the issuing state to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State, upon receiving a request in writing from the issuing state in that behalf.

• (6) The High Court shall not give its consent under subsection (5) if the offence concerned is an offence for which a person could not by virtue of Part 3 or the Framework Decision (including the recitals thereto) be surrendered under this Act.”.

82. Extradition of person by issuing state to third state.

82.—The Act of 2003 is amended by the substitution of the following section for section 24:

“24.—(1) The High Court shall refuse to surrender a person under this Act if it is satisfied that—

• (a) the law of the issuing state does not provide that a person who is surrendered to it pursuant to a European arrest warrant shall not be extradited to a third country without the consent of the High Court and the Minister first being obtained, and

• (b) the person will be extradited to a third country without such consent first being obtained.

• (2) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to extradite him or her to a third country, unless the contrary is proved.

• (3) The issuing state may request, in writing, the High Court to consent to the extradition to a third country by the issuing state of a person surrendered to the issuing state under this Act.

• (4) The High Court shall give its consent to a request under subsection (3) if it is satisfied that—

  • (a) were the person concerned in the State, and

  • (b) were a request for his or her extradition received in the State from the third country concerned,

  his or her extradition pursuant to such a request would not be prohibited under the Extradition Acts 1965 to 2001.”.

83. Proceedings in the State.

83.—The Act of 2003 is amended by the substitution of the following section for section 42:

“42.—A person shall not be surrendered under this Act if—

• (a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring proceedings against the person for an offence, or

• (b) proceedings have been brought in the State against the person for an offence consisting of an act or omission of which the offence specified in the European arrest warrant issued in respect of him or her consists in whole or in part.”.

F36[SCHEDULE 1 DIRECTIVE (EU) 2017/541 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA

Section 4.

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 83(1) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee³,

Acting in accordance with the ordinary legislative procedure⁴,

Whereas:

• (1) The Union is founded on the universal values of human dignity, freedom, equality and solidarity, and respect for human rights and fundamental freedoms. It is based on the principles of democracy and the rule of law, which are common to the Member States.

• (2) Acts of terrorism constitute one of the most serious violations of the universal values of human dignity, freedom, equality and solidarity, and enjoyment of human rights and fundamental freedoms on which the Union is founded. They also represent one of the most serious attacks on democracy and the rule of law, principles which are common to the Member States and on which the Union is based.

• (3) Council Framework Decision 2002/475/JHA⁵ is the cornerstone of the Member States’ criminal justice response to counter terrorism. A legal framework common to all Member States, and in particular, a harmonised definition of terrorist offences, serves as a benchmark for information exchange and cooperation between the competent national authorities under Council Framework Decision 2006/960/JHA⁶, Council Decisions 2008/615/JHA⁷ and 2005/671/JHA⁸, Regulation (EU) No 603/2013 of the European Parliament and of the Council⁹, and Council Framework Decisions 2002/584/JHA¹⁰ and 2002/465/JHA¹¹.

• (4) The terrorist threat has grown and rapidly evolved in recent years. Individuals referred to as “foreign terrorist fighters” travel abroad for the purpose of terrorism. Returning foreign terrorist fighters pose a heightened security threat to all Member States. Foreign terrorist fighters have been linked to recent attacks and plots in several Member States. In addition, the Union and its Member States face increased threats from individuals who are inspired or instructed by terrorist groups abroad but who remain within Europe.

• (5) In its Resolution 2178 (2014), the UN Security Council expressed its concern over the growing threat posed by foreign terrorist fighters and required all Member States of the UN to ensure that offences related to this phenomenon are punishable under national law. The Council of Europe has, in this respect, adopted in 2015 the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism.

• (6) Taking account of the evolution of terrorist threats to and legal obligations on the Union and Member States under international law, the definition of terrorist offences, of offences related to a terrorist group and of offences related to terrorist activities should be further approximated in all Member States, so that it covers conduct related to, in particular, foreign terrorist fighters and terrorist financing more comprehensively. These forms of conduct should also be punishable if committed through the internet, including social media.

• (7) Furthermore, the cross-border nature of terrorism requires a strong coordinated response and cooperation within and between the Member States, as well as with and among the competent Union agencies and bodies to counter terrorism, including Eurojust and Europol. To that end, efficient use of the available tools and resources for cooperation should be made, such as joint investigation teams and coordination meetings facilitated by Eurojust. The global character of terrorism necessitates an international answer, requiring the Union and its Member States to strengthen cooperation with relevant third countries. A strong coordinated response and cooperation is also necessary with a view to securing and obtaining electronic evidence.

• (8) This Directive exhaustively lists a number of serious crimes, such as attacks against a person’s life, as intentional acts that can qualify as terrorist offences when and insofar as committed with a specific terrorist aim, namely to seriously intimidate a population, to unduly compel a government or an international organisation to perform or abstain from performing any act, or to seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation. The threat to commit such intentional acts should also be considered to be a terrorist offence when it is established, on the basis of objective circumstances, that such threat was made with any such terrorist aim. By contrast, acts aiming, for example, to compel a government to perform or abstain from performing any act, without however being included in the exhaustive list of serious crimes, are not considered to be terrorist offences in accordance with this Directive.

• (9) The offences related to terrorist activities are of a very serious nature as they have the potential to lead to the commission of terrorist offences and enable terrorists and terrorist groups to maintain and further develop their criminal activities, justifying the criminalisation of such conduct.

• (10) The offence of public provocation to commit a terrorist offence act comprises, inter alia, the glorification and justification of terrorism or the dissemination of messages or images online and offline, including those related to the victims of terrorism as a way to gather support for terrorist causes or to seriously intimidate the population. Such conduct should be punishable when it causes a danger that terrorist acts may be committed. In each concrete case, when considering whether such a danger is caused, the specific circumstances of the case should be taken into account, such as the author and the addressee of the message, as well as the context in which the act is committed. The significance and the credible nature of the danger should be also considered when applying the provision on public provocation in accordance with national law.

• (11) Criminalisation of receiving training for terrorism complements the existing offence of providing training and specifically addresses the threats resulting from those actively preparing for the commission of terrorist offences, including those ultimately acting alone. Receiving training for terrorism includes obtaining knowledge, documentation or practical skills. Self-study, including through the internet or consulting other teaching material, should also be considered to be receiving training for terrorism when resulting from active conduct and done with the intent to commit or contribute to the commission of a terrorist offence. In the context of all of the specific circumstances of the case, this intention can for instance be inferred from the type of materials and the frequency of reference. Thus, downloading a manual to make explosives for the purpose of committing a terrorist offence could be considered to be receiving training for terrorism. By contrast, merely visiting websites or collecting materials for legitimate purposes, such as academic or research purposes, is not considered to be receiving training for terrorism under this Directive.

• (12) Considering the seriousness of the threat and the need, in particular, to stem the flow of foreign terrorist fighters, it is necessary to criminalise outbound travelling for the purpose of terrorism, namely not only the commission of terrorist offences and providing or receiving training but also the participation in the activities of a terrorist group. It is not indispensable to criminalise the act of travelling as such. Furthermore, travel to the territory of the Union for the purpose of terrorism presents a growing security threat. Member States may also decide to address terrorist threats arising from travel for the purpose of terrorism to the Member State concerned by criminalising preparatory acts, which may include planning or conspiracy, with a view to committing or contributing to a terrorist offence. Any act of facilitation of such travel should also be criminalised.

• (13) Illicit trade in firearms, oil, drugs, cigarettes, counterfeit goods and cultural objects, as well as trafficking in human beings, racketeering and extortion have become lucrative ways for terrorist groups to obtain funding. In this context, the increasing links between organised crime and terrorist groups constitute a growing security threat to the Union and should therefore be taken into account by the authorities of the Member States involved in criminal proceedings.

• (14) Directive (EU) 2015/849 of the European Parliament and of the Council¹² establishes common rules on the prevention of the use of the Union’s financial system for the purposes of money laundering or terrorist financing. In addition to this preventive approach, terrorist financing should be punishable in the Member States. Criminalisation should cover not only the financing of terrorist acts, but also the financing of a terrorist group, as well as other offences related to terrorist activities, such as the recruitment and training, or travel for the purpose of terrorism, with a view to disrupting the support structures facilitating the commission of terrorist offences.

• (15) The provision of material support for terrorism through persons engaging in or acting as intermediaries in the supply or movement of services, assets and goods, including trade transactions involving the entry into or exit from the Union, such as the sale, acquisition or exchange of a cultural object of archaeological, artistic, historical or scientific interest illegally removed from an area controlled by a terrorist group at the time of the removal, should be punishable, in the Member States, as aiding and abetting terrorism or as terrorist financing if performed with the knowledge that these operations or the proceeds thereof are intended to be used, in full or in part, for the purpose of terrorism or will benefit terrorist groups. Further measures may be necessary with a view to effectively combating the illicit trade in cultural objects as a source of income for terrorist groups.

• (16) The attempt to travel for the purpose of terrorism, to provide training for terrorism and to recruit for terrorism should be punishable.

• (17) With regard to the criminal offences provided for in this Directive, the notion of intention must apply to all the elements constituting those offences. The intentional nature of an act or omission may be inferred from objective, factual circumstances.

• (18) Penalties and sanctions should be provided for natural and legal persons being liable for such offences, which reflect the seriousness of such offences.

• (19) When recruitment and training for terrorism are directed towards a child, Member States should ensure that judges can take this circumstance into account when sentencing offenders, although there is no obligation on judges to increase the sentence. It remains within the discretion of the judge to assess that circumstance together with the other facts of the particular case.

• (20) Jurisdictional rules should be established to ensure that the offences laid down in this Directive may be effectively prosecuted. In particular, it appears appropriate to establish jurisdiction for the offences committed by the providers of training for terrorism, whatever their nationality, in view of the possible effects of such conducts on the territory of the Union and of the close material connection between the offences of providing and receiving training for terrorism.

• (21) To ensure the success of investigations and the prosecution of terrorist offences, offences related to a terrorist group or offences related to terrorist activities, those responsible for investigating or prosecuting such offences should have the possibility to make use of effective investigative tools such as those which are used in combating organised crime or other serious crimes. The use of such tools, in accordance with national law, should be targeted and take into account the principle of proportionality and the nature and seriousness of the offences under investigation and should respect the right to the protection of personal data. Such tools should, where appropriate, include, for example, the search of any personal property, the interception of communications, covert surveillance including electronic surveillance, the taking and the keeping of audio recordings, in private or public vehicles and places, and of visual images of persons in public vehicles and places, and financial investigations.

• (22) An effective means of combating terrorism on the internet is to remove online content constituting a public provocation to commit a terrorist offence at its source. Member States should use their best endeavours to cooperate with third countries in seeking to secure the removal of online content constituting a public provocation to commit a terrorist offence from servers within their territory. However, when removal of such content at its source is not feasible, mechanisms may also be put in place to block access from Union territory to such content. The measures undertaken by Member States in accordance with this Directive in order to remove online content constituting a public provocation to commit a terrorist offence or, where this is not feasible, block access to such content could be based on public action, such as legislative, non-legislative or judicial action. In that context, this Directive is without prejudice to voluntary action taken by the internet industry to prevent the misuse of its services or to any support for such action by Member States, such as detecting and flagging terrorist content. Whichever basis for action or method is chosen, Member States should ensure that it provides an adequate level of legal certainty and predictability for users and service providers and the possibility of judicial redress in accordance with national law. Any such measures must take account of the rights of the end users and comply with existing legal and judicial procedures and the Charter of Fundamental Rights of the European Union (the Charter).

• (23) The removal of online content constituting a public provocation to commit a terrorist offence or, where it is not feasible, the blocking of access to such content, in accordance with this Directive, should be without prejudice to the rules laid down in Directive 2000/31/EC of the European Parliament and of the Council¹³. In particular, no general obligation should be imposed on service providers to monitor the information which they transmit or store, nor to actively seek out facts or circumstances indicating illegal activity. Furthermore, hosting service providers should not be held liable as long as they do not have actual knowledge of illegal activity or information and are not aware of the facts or circumstances from which the illegal activity or information is apparent.

• (24) To combat terrorism effectively, efficient exchange of information considered to be relevant by the competent authorities for the prevention, detection, investigation or prosecution of terrorist offences between competent authorities and Union agencies, is crucial. Member States should ensure that information is exchanged in an effective and timely manner in accordance with national law and the existing Union legal framework, such as Decision 2005/671/JHA, Council Decision 2007/533/JHA¹⁴ and Directive (EU) 2016/681 of the European Parliament and of the Council¹⁵. When considering whether to exchange relevant information, national competent authorities should take into account the serious threat posed by terrorist offences.

• (25) To strengthen the existing framework on information exchange in combating terrorism, as set out in Decision 2005/671/JHA, Member States should ensure that relevant information gathered by their competent authorities in the framework of criminal proceedings, for example, law enforcement authorities, prosecutors or investigative judges, is made accessible to the respective competent authorities of another Member State to which they consider this information could be relevant. As a minimum, such relevant information should include, as appropriate, the information that is transmitted to Europol or Eurojust in accordance with Decision 2005/671/JHA. This is subject to Union rules on data protection, as laid down in Directive (EU) 2016/680 of the European Parliament and of the Council¹⁶ and without prejudice to Union rules on cooperation between competent national authorities in the framework of criminal proceedings, such as those laid down in Directive 2014/41/EU of the European Parliament and of the Council¹⁷ or Framework Decision 2006/960/JHA.

• (26) Relevant information gathered by competent authorities of the Member States in the framework of criminal proceedings in connection with terrorist offences should be exchanged. The term “criminal proceedings” is understood to cover all stages of the proceedings, from the moment a person is suspected or accused of having committed a criminal offence until the decision on the final determination of whether that person committed the criminal offence concerned has become definitive.

• (27) Member States should adopt measures of protection, support and assistance responding to the specific needs of victims of terrorism, in accordance with Directive 2012/29/EU of the European Parliament and the Council¹⁸ and as further qualified by this Directive. A victim of terrorism is that defined in Article 2 of Directive 2012/29/EU, namely a natural person who has suffered harm, including physical, mental or emotional harm or economic loss, insofar as that was directly caused by a terrorist offence, or a family member of a person whose death was directly caused by a terrorist offence and who has suffered harm as a result of that person’s death. Family members of surviving victims of terrorism, as defined in that Article, have access to victim support services and protection measures in accordance with that Directive.

• (28) The assistance with victims’ compensation claims is without prejudice and in addition to the assistance which victims of terrorism receive from assisting authorities in accordance with Council Directive 2004/80/EC¹⁹. This is without prejudice to the national rules on legal representation for claiming compensation, including through legal aid arrangements, and any other relevant national rules on compensation.

• (29) Member States should ensure that a comprehensive response to the specific needs of victims of terrorism immediately after a terrorist attack and for as long as necessary is provided within the national emergency-response infrastructure. To that end, Member States may set up a single and updated website with all relevant information and an emergency support centre for victims and their family members providing for psychological first aid and emotional support. Initiatives of Member States in this respect should be supported by making full use of available common assistance mechanisms and resources at Union level. Support services should take into account that specific needs of victims of terrorism may evolve over time. In that regard, the Member States should ensure that support services address in the first place at least the emotional and psychological needs of the most vulnerable victims of terrorism, and inform all victims of terrorism about the availability of further emotional and psychological support including trauma support and counselling.

• (30) Member States should ensure that all victims of terrorism have access to information about victims’ rights, available support services and compensation schemes in the Member State where the terrorist offence was committed. Member States concerned should take appropriate action to facilitate cooperation with each other in order to ensure that victims of terrorism who are residents of a Member State other than that where the terrorist offence was committed, have effective access to such information. Moreover the Member States should ensure that victims of terrorism have access to long-term support services in the Member State of their residence, even if the terrorist offence took place in another Member State.

• (31) As reflected in the revised EU Strategy for Combating Radicalisation and Recruitment to Terrorism of 2014 and in the Conclusions of the Council of the European Union and of the Member States meeting within the Council on enhancing the criminal justice response to radicalisation leading to terrorism and violent extremism of 2015, prevention of radicalisation and recruitment to terrorism, including radicalisation online, requires a long-term, proactive and comprehensive approach. Such approach should combine measures in the area of criminal justice with policies in the fields of education, social inclusion and integration, as well as the provision of effective deradicalisation or disengagement and exit or rehabilitation programmes, including in the prison and probation context. Member States should share good practices on effective measures and projects in this field, in particular as regards foreign terrorist fighters as well as returnees, where appropriate in cooperation with the Commission and the relevant Union agencies and bodies.

• (32) Member States should pursue their efforts to prevent and counter radicalisation leading to terrorism by coordinating, by sharing information and experience on national prevention policies, and by implementing or, as the case may be, updating national prevention policies taking into account their own needs, objectives and capabilities building on their own experiences. The Commission should, where appropriate, provide support to national, regional and local authorities in developing prevention policies.

• (33) Member States should, depending on the relevant needs and particular circumstances in each Member State, provide support to professionals, including civil society partners likely to come in contact with persons vulnerable to radicalisation. Such support measures may include, in particular, training and awareness-raising measures aimed at enabling them to identify and address signs of radicalisation. Such measures should, where appropriate, be taken in cooperation with private companies, relevant civil society organisations, local communities and other stake holders.

• (34) Since the objectives of this Directive cannot be sufficiently achieved by the Member States but can rather, by reason of the need for Union-wide harmonised rules, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity, as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

• (35) This Directive respects the principles recognised by Article 2 TEU, respects fundamental rights and freedoms and observes the principles recognised, in particular, by the Charter, including those set out in Titles II, III, V and VI thereof which encompass, inter alia, the right to liberty and security, freedom of expression and information, freedom of association and freedom of thought, conscience and religion, the general prohibition of discrimination, in particular on grounds of race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, the right to respect for private and family life and the right to protection of personal data, the principles of legality and proportionality of criminal offences and penalties, covering also the requirement of precision, clarity and foreseeability in criminal law, the presumption of innocence as well as freedom of movement as set out in Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) and in Directive 2004/38/EC of the European Parliament and of the Council²⁰. This Directive has to be implemented in accordance with those rights and principles taking also into account the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and other human rights obligations under international law.

• (36) This Directive is without prejudice to the Member States’ obligations under Union law with regard to the procedural rights of suspects or accused persons in criminal proceedings.

• (37) This Directive should not have the effect of altering the rights, obligations and responsibilities of the Member States under international law, including under international humanitarian law. This Directive does not govern the activities of armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of those terms under that law, and, inasmuch as they are governed by other rules of international law, activities of the military forces of a State in the exercise of their official duties.

• (38) The provision of humanitarian activities by impartial humanitarian organisations recognised by international law, including international humanitarian law, do not fall within the scope of this Directive, while taking into account the case-law of the Court of Justice of the European Union.

• (39) The implementation of criminal law measures adopted under this Directive should be proportional to the nature and circumstances of the offence, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness, racism or discrimination.

• (40) Nothing in this Directive should be interpreted as being intended to reduce or restrict the dissemination of information for scientific, academic or reporting purposes. The expression of radical, polemic or controversial views in the public debate on sensitive political questions, falls outside the scope of this Directive and, in particular, of the definition of public provocation to commit terrorist offences.

• (41) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application.

• (42) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

• (43) This Directive should therefore replace Framework Decision 2002/475/JHA with regard to the Member States bound by this Directive and amend Decision 2005/671/JHA,

HAVE ADOPTED THIS DIRECTIVE:

TITLE I

SUBJECT MATTER AND DEFINITIONS

Article 1

Subject matter

This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of terrorist offences, offences related to a terrorist group and offences related to terrorist activities, as well as measures of protection of, and support and assistance to, victims of terrorism.

Article 2

Definitions

For the purposes of this Directive, the following definitions apply:

• (1) “funds” means assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit,

• (2) “legal person” means any entity having legal personality under the applicable law, except for States or public bodies in the exercise of State authority and for public international organisations,

• (3) “terrorist group” means a structured group of more than two persons, established for a period of time and acting in concert to commit terrorist offences; “structured group” means a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.

TITLE II

TERRORIST OFFENCES AND OFFENCES RELATED TO A TERRORIST GROUP

Article 3

Terrorist offences

• (a) attacks upon a person’s life which may cause death;

• (b) attacks upon the physical integrity of a person;

• (c) kidnapping or hostage-taking;

• (d) causing extensive destruction to a government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss;

• (e) seizure of aircraft, ships or other means of public or goods transport;

• (f) manufacture, possession, acquisition, transport, supply or use of explosives or weapons, including chemical, biological, radiological or nuclear weapons, as well as research into, and development of, chemical, biological, radiological or nuclear weapons;

• (g) release of dangerous substances, or causing fires, floods or explosions, the effect of which is to endanger human life;

• (h) interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life;

• (i) illegal system interference, as referred to in Article 4 of Directive 2013/40/EU of the European Parliament and of the Council²¹ in cases where Article 9(3) or point (b) or (c) of Article 9(4) of that Directive applies, and illegal data interference, as referred to in Article 5 of that Directive in cases where point (c) of Article 9(4) of that Directive applies;

• (j) threatening to commit any of the acts listed in points (a) to (i).

• (a) seriously intimidating a population;

• (b) unduly compelling a government or an international organisation to perform or abstain from performing any act;

• (c) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.

Article 4

Offences relating to a terrorist group

Member States shall take the necessary measures to ensure that the following acts, when committed intentionally, are punishable as a criminal offence:

• (a) directing a terrorist group;

• (b) participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the terrorist group.

TITLE III

OFFENCES RELATED TO TERRORIST ACTIVITIES

Article 5

Public provocation to commit a terrorist offence

Member States shall take the necessary measures to ensure that the distribution, or otherwise making available by any means, whether online or offline, of a message to the public, with the intent to incite the commission of one of the offences listed in points (a) to (i) of Article 3(1), where such conduct, directly or indirectly, such as by the glorification of terrorist acts, advocates the commission of terrorist offences, thereby causing a danger that one or more such offences may be committed, is punishable as a criminal offence when committed intentionally.

Article 6

Recruitment for terrorism

Member States shall take the necessary measures to ensure that soliciting another person to commit or contribute to the commission of one of the offences listed in points (a) to (i) of Article 3(1), or in Article 4 is punishable as a criminal offence when committed intentionally.

Article 7

Providing training for terrorism

Member States shall take the necessary measures to ensure that providing instruction on the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or on other specific methods or techniques, for the purpose of committing, or contributing to the commission of, one of the offences listed in points (a) to (i) of Article 3(1), knowing that the skills provided are intended to be used for this purpose, is punishable as a criminal offence when committed intentionally.

Article 8

Receiving training for terrorism

Member States shall take the necessary measures to ensure that receiving instruction on the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or on other specific methods or techniques, for the purpose of committing, or contributing to the commission of, one of the offences listed in points (a) to (i) of Article 3(1) is punishable as a criminal offence when committed intentionally.

Article 9

Travelling for the purpose of terrorism

• (a) 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

• (b) preparatory acts undertaken by a person entering that Member State with the intention to commit, or contribute to the commission of, a terrorist offence as referred to in Article 3.

Article 10

Organising or otherwise facilitating travelling for the purpose of terrorism

Member States shall take the necessary measures to ensure that any act of organisation or facilitation that assists any person in travelling for the purpose of terrorism, as referred to in Article 9(1) and point (a) of Article 9(2), knowing that the assistance thus rendered is for that purpose, is punishable as a criminal offence when committed intentionally.

Article 11

Terrorist financing

Article 12

Other offences related to terrorist activities

Member States shall take the necessary measures to ensure that offences related to terrorist activities include the following intentional acts:

• (a) aggravated theft with a view to committing one of the offences listed in Article 3;

• (b) extortion with a view to committing one of the offences listed in Article 3;

• (c) drawing up or using false administrative documents with a view to committing one of the offences listed in points (a) to (i) of Article 3(1), point (b) of Article 4, and Article 9.

TITLE IV

GENERAL PROVISIONS RELATING TO TERRORIST OFFENCES, OFFENCES RELATED TO A TERRORIST GROUP AND OFFENCES RELATED TO TERRORIST ACTIVITIES

Article 13

Relationship to terrorist offences

For an offence referred to in Article 4 or Title III to be punishable, it shall not be necessary that a terrorist offence be actually committed, nor shall it be necessary, insofar as the offences referred to in Articles 5 to 10 and 12 are concerned, to establish a link to another specific offence laid down in this Directive.

Article 14

Aiding and abetting, inciting and attempting

Article 15

Penalties for natural persons