A SUBJECTIVATION OF THE CRIMINAL LAW

The year 2016 saw a veritable inflation of criminal legislation. Two significant laws, one dating from August, redefining the other, adopted in December, punishing the« indirect incitement » to terrorism. « participation » in a terrorist organization and The definition of« preparation » of terrorist acts is an important step forward in the process of subjectivization of criminal law, which began some fifteen years ago. This trend, common to all EU member states, precedes the « fight against terrorism » legitimized by the 9/11 attacks. 

In Belgium, it begins with the law on criminal organizations of January 10, 1999⁽¹⁾. This is a real prefiguration of the anti-terrorist legislation that punishes the membership, as well as the participation in lawful activities of the so-called criminal organization. This law already builds a collective responsibility. The mere fact of being part of a prosecuted organization, without committing a material offence, nor having had the intention to do so, is sufficient to be punished. The second stage corresponds to the period following the 9/11 attacks. The incorporation of the EU Framework Decision on terrorism into the Belgian Penal Code in December 2003⁽²⁾ introduced a new incrimination specifying the terrorist act and organization. The offence includes a double element: one objective, that is to say a violent act, an attack, a destruction of a building… and the other subjective, the intention with which the act is committed. It is this subjective element that is decisive. An action is considered to be terrorist when it aims to « seriously undermine » the political, economic or social structures of a country or when it aims to destabilize it. This law also develops a crime of belonging. One can be prosecuted, not because one has committed a specific act, but simply because one is a member of or considered to be linked to an organization labeled as terrorist. 

INDIRECT » INCITEMENT TO TERRORISM 

Following the attacks in France and Belgium, the legislative machine is in full swing. The law of August 8, 2016 « on various provisions relating to the fight against terrorism ».⁽³⁾ makes it a crime to incite travel abroad « for terrorist purposes », as well as recruitment, to travel abroad or to return to our country, « for terrorist purposes ». Previously, only incitement or recruitment to carry out a « terrorist attack » was targeted. 

Most importantly, it modifies the offense of incitement to terrorism, already contained in the law of February 18, 2013⁽⁴⁾. This transposition into Belgian law of the Council of the European Union’s Framework Decision 2008/919/JHA prosecuted the act of disseminating or making available to the public a message with the intention of inciting, « directly or indirectly », the commission of a terrorist offence. This was already a very vague notion, violating the principle of legality. In the case of indirect incitement, the magistrate must speculate on the intentions of the author, as well as on the feelings of those who receive or might receive the message. 

It should be remembered that this possibility, offered by the 2013 law, had been refused, at the beginning of 2008, by the Belgian parliamentarians, majority and opposition alike, during a subsidiarity check of the proposed Framework Decision 2008/919/JHA of the Council of the European Union, which imposes the prosecution of incitement to terrorism. Yet, the text that was adopted in 2013 is no different than the one rejected in 2008⁽⁵⁾. The change in the attitude of the legislature is symptomatic of how far we have come in the process of abandoning fundamental freedoms. 

Under the 2013 law, the judge also had to determine, in the absence of an act, whether the dissemination of the message « creates the risk » that a terrorist offense could have been committed. It is therefore a purely subjective element that should not be confronted with any objectification. Yet it is this assessment that is removed by the 2016 law. The notion of « risk » is no longer necessary to characterize speech or writing as indirect incitement to terrorism, thus reinforcing the possibility of creating a purely opinion-based crime. Thus, the contested word or writing is in itself criminalized, even if it does not lead to, nor present any risk of, a terrorist act. 

This incrimination could make it possible to attack a radical contestation of Belgium’s foreign policy, words or writings that would encourage the Syrian populations to defend themselves against the NATO bombings on their territory. 

The commission of this offence always requires special intent, as is made clear by the use of the words « with the intention of directly or indirectly inciting the commission of a terrorist offence. » Once again, to the detriment of any objective element, the subjective aspect is valued. 

Like the French law on public provocation to terrorism, the new bill violates the Council of Europe Convention on the Prevention of Terrorism. The latter is particularly explicit:  » … In assessing  »whether such a risk » is created, consideration must be given to the nature of the author and recipient of the message, as well as the context of the author and recipient of the message, as well as the context in which the offense is committed⁽⁶⁾… »

APOLOGY OF TERRORISM IN FRANCE 

In France, Article L. 421–2‑5 of Law No. 20141353, reinforcing the provisions relating to the fight against terrorism⁽⁷⁾, punishes « the fact of directly provoking acts of terrorism or publicly advocating such acts. » It establishes that « apology for terrorism » is tantamount to terrorism. 

By removing apology for terrorism from press law and inserting it into the penal code, the article establishes a direct causal relationship between speech and acts. To consider that a content considered as « glorifying terrorism » is terrorism, is an attack on the freedom of expression, because the border between opinion and apology, information and propaganda, is very blurred. 

Since the attacks on the Charlie-Hebdo newspaper, proceedings for « apology of terrorism » have multiplied and a series of prison sentences have been handed down in immediate appearance. If apology consists in justifying terrorism, presenting it in a favorable light or encouraging it, how can the example of a 14-year-old girl, indicted for apology of terrorism for having said « We’re the Kouachi sisters, we’re going to get out the Kalashnikovs, » she says in « the fight against terrorism. » 

Recall that since the beginning of the state of emergency until December 2016, 4,292 searches have been conducted under this framework. As a result, 670 proceedings were opened, 61 of which were for acts related to terrorism, including 41 for « apology for terrorism ». It appears that the latter constitutes the bulk of prosecutions in matters of terrorism, whereas it may simply be a matter of a crime of opinion or simply of provocation against the « forces of order ». 

Thanks to the notion of « indirect » incitement, Belgium reaches the level of arbitrariness that the French incrimination of glorification of terrorism allows. If these two countries go beyond what was required by the Council of Europe, they still have a small step to take to reach the liberticidal level of the English legislation. The United Kingdom anticipated all continental anti-terrorist legislation and still presents itself as an unbeatable model. 

TOWARDS THE ENGLISH MODEL 

In Great Britain, the Terrorism Bill of 2005 includes offences of encouragement to terrorism and indirect incitement that do not require an intent to incite others to commit criminal acts. An individual can commit these crimes without realizing it. The offense of indirect incitement exists if a person who makes or publishes a statement is merely « reckless » as to whether or not his or her speech will be understood as encouraging terrorism. The law takes a very broad approach to recklessness, including The term « recklessness » is used to refer to situations where a person can be held to be reckless [qui] includes every situation where the person could not reasonably have failed to have knowledge of the possibility. » 

As in Belgium, the materiality of the facts is no longer necessary to pursue statements, nor is terrorist intent attributed to the persons prosecuted, this last point being specific to Great Britain. It is enough for an individual, any individual, to declare that he or she feels incited to commit terrorist acts, by words spoken by a third party, for the author of the speech to be prosecuted. The speaker is therefore responsible for how his or her statements may be perceived, regardless of the purpose and intent. For example, words or writings in support of the Palestinian resistance could be used as a basis for prosecution if a person who planted a bomb on the London Underground referred to them in order to justify his action. Belgium and France are moving step by step towards this political model, which tells citizens that in all circumstances it is more prudent to keep quiet. 

PUNISHING SUPPOSED AND UNPROVEN KNOWLEDGE 

In our country, the latest law of December 2016 « amending the penal code with regard to the repression of terrorism »,⁽⁸⁾ transforms the concept of participation in a terrorist organization. This incrimination, introduced by the law of December 19, 2003, punishes « any person who participates in an activity of a terrorist group … with the knowledge that such participation contributes to the commission of a crime or an offence by the terrorist group.⁽⁹⁾ » The 2016 Act replaces the words « with knowledge » with « with knowledge or should have knowledge » and the verb « contributes » with « could contribute ». The broadening of the incrimination is considerable. It creates a notion of presupposed knowledge that replaces real knowledge. 

The incrimination contained in this 2016 law operates a reversal of the order of law by giving the power carte blanche to prosecute citizens. It is opposed to legal certainty, which requires that, in order for an act to be punishable, the perpetrator must be in a position to know, at the time he acts, that the act constitutes an offence. 

Parliamentarians have just accepted what they had previously refused. It should be recalled that during the parliamentary work on the aforementioned law of January 10, 1999 on criminal organizations, legislation that anticipates anti-terrorism laws, the words « or must know » were omitted from the article that criminalizes participation in certain activities of the criminal organization. During the discussion, it was indicated that « Inthis way, it was argued, the burden of proof would be reversed and the judge would be given too much discretion and would be led to infer the guilt of a suspect « in abstracto, without reference to his experience. » 

The law also provides for the prosecution of acts preparatory to a terrorist offence which consist of « facilitate and enable » the execution of the action, but « do not constitute material acts of said offense. » Thus, this incrimination can cover acts that may have nothing illegal about them, but become so because they are coupled with an « intent » to commit a terrorist act. The explanatory memorandum specifies that preparatory acts are to be distinguished from attempts. Criminalizing the former would make it possible to intervene upstream of the commission of the offence, at the preparatory stage of the act. The attempt, on the other hand, is characterized by the manifestation of external actions that form a beginning of execution of the crime. 

Thus, unlike the attempt, which concerns material acts, the essence of the notion of preparation of a terrorist offence is based on a subjective element, the intention attributed to the accused. 

The government was inspired by the French legislation. However, it provides a list of behaviors that must be considered as preparatory acts. Note that it also requires the combination of one preparatory act (possessing, searching for, procuring or manufacturing objects or substances likely to create a danger to others) with another (for example, gathering information about the places targeted by an action). In Belgium, this solution was not adopted because it was considered « too restrictive ». It is the subjective element, the criminal intent attributed to the perpetrator, that will determine whether the action taken is illegal, without any attempt, contrary to France, to make the criminalization of preparatory acts somewhat objective. 

Jean-Claude Paye, sociologist, author of The hold of the image. From Guantanamo to TarnacEditions Yves Michel.