The Case Law of the Bundesverfassungsgericht on Counterterrorist Measures

Ever since 9/11, a multitude of laws against terrorism have been adopted, both on the federal level and on the level of the Länder (which in Germany are mainly responsible for the police). The 2002 “Law on suppression of international terrorism” was only the first of many to follow: immediately after 9/11, the Federal Ministry of the Interior seized the opportunity to introduce counterterrorist measures that had been on its agenda for quite some time.

11. Mai 2018

Excesses of Counter-Terrorism and Constitutional Review in France: The Example of the Criminalisation of the Consultation of Websites

In the span of three years, France has adopted no less than five new counter-terrorism laws in November 2014, November 2015, June 2016, February 2017, and October 2017. As in other countries, this surge in counter-terrorism legislation has been prompted by a rise and reconfiguration of the terrorist threat (notably with regards to Foreign Terrorist Fighters (FTFs)), and in turn by the United Nations‹ call for the adoption by states of new measures, in particular broad criminal offences. In order to address the threat of FTFs, impede radicalisation and recruitment, and pre-empt the commission of terrorist acts, Security Council Resolution ... continue reading

10. Mai 2018

China’s Constitution and the People’s War on Terror

When HU Bo posted his tweet in July 2014, he must have immediately felt that he had made a big mistake. Just three hours after he wrote in his intra-workspace social media group about the ongoing riots in China’s far western region of Yarkand County, he took his post down and shortly after surrendered to the police in his hometown of Ürümqi. He was in trouble because he had not only repeated the official news, but he apparently had added some unconfirmed rumors about the intensity and extent of the riots. This had put him outside of the law. Fake ... continue reading

9. Mai 2018

The State of Emergency, Non-Refoulement and the Turkish Constitutional Court

There is almost not a day that passes without terrorism featuring in the Turkish media, with national terrorism and the fight against terrorism being the subject of controversy both nationally and internationally. The broad definition of terrorism under Turkey’s Anti-Terrorism Law of 1991, the measure of discretion of the competent authorities in the modality of the fight against terrorism and the impact this has (had) on democratic freedoms is presumably well-known to the readers of this blog. To name but one recent incident: the judgment of a lower Istanbul court sentencing journalists to prison for their involvement in terrorist organizations, ... continue reading

9. Mai 2018

State Secrecy in Counterterrorism: Different Judicial Standards of Review – The Abu Omar Case before Italian Courts

State secrecy provides an interesting viewpoint on national and supranational judicial review standards over counterterrorism measures, since it has frequently been invoked by advanced democracies in the fight against terrorism. Over the last years, the shield of secrecy has consistently concealed abuses perpetrated during intelligence operations, including the controversial practice of extraordinary renditions (ERs), carried out around the world by the US jointly with several European countries. What is more, state secret privilege has often been claimed during criminal proceedings. Therefore, essential evidence of serious violations of human rights has been shielded by the privilege, promptly invoked by governments involved ... continue reading

8. Mai 2018

Is Travel to Syrian Warfare a Terrorist Crime? The Finnish Case

On 24 January 2018, the Helsinki District Court of 24 January 2018 ruled on an alleged plan by three Muslim men, all Finnish nationals, to travel to Syria and join the ongoing armed conflict there. The prosecutor chose to base the charges on Section 2, Preparation of an offence to be committed with terrorist aim, under the construction that joining the armed opposition forces in Syria so as to engage in hostilities against the official army of the al-Assad regime, could have resulted in death or injury to members of the Syrian military forces.

8. Mai 2018

The Right to Fair Trial and the Rise of Sensitive Intelligence Evidence: Responses from the Dutch and UK Courts

Writing extra-judicially, Lord Justice Brown once described the typical court approach on matters of national security as follows: »the mere incantation of the phrase [national security] of itself instantly discourages the court from satisfactorily fulfilling its normal role of deciding where the balance of public interest lies.« (1994 Public Law) Yet, in recent times, despite a traditional reluctance to engage with sensitive intelligence evidence – cases such as Liversidge v Anderson and Cheblak, for example (Hans Born et al 2011) – some national courts have become increasingly more at ease with assessing so-called secret evidence before reaching a conclusion on the ... continue reading

7. Mai 2018

Courts and Counter-Terrorism: the Last Line of Defence?

Terrorism is all over the news these days but not always in the negative. For example, the Global Terrorism Index 2017 has established that the number of deaths caused by terrorism has decreased in 2016. Nigeria has even witnessed an 80 per cent reduction in the number of people killed by Boko Haram. At the same time terrorism is spreading to more countries. For instance, no fewer than 106 nations experienced at least one terrorist attack in 2016. In Europe, an increase is visible. While in 2002 there were 129 attacks leading to 14 deaths, the year 2016 witnessed 630 ... continue reading

7. Mai 2018

Is There A Better Way Forward?

Poland and Hungary have governments that are systematically undermining constitutional checks on the power of their leaders and deliberately turning all state institutions into arms of the party. Those cases demand that the EU’s full powers be urgently directed to averting a full-blown autocracy within the EU. What can be done?

10. März 2018