Jasmine Rayée, Sophie Schiettekatte, Dorien Surinx, Judith Vermeulen (Master Students, UGent), Pieter Cannoot (assistant, UGent) and Dr. Jurgen Goossens (postdoctoral researcher, UGent)

See Dutch version below

terrorismFollowing the Paris attacks in November 2015, the Belgian federal government issued a list of counter-terrorism measures to be implemented as a tool to combat the surge of terrorism threats. The proposals, depicted as necessary for the safety and security of the citizens, did not come as a surprise. An increase in anti-terrorism measures can be observed all over Europe and beyond, allegedly justified as part of a state’s obligation under international law to protect its citizens. However, some measures inevitably entail restrictions on fundamental rights and freedoms. Are we witnessing an unprecedented pressure on our fundamental constitutional rights? This post will analyse the effect of recent counter-terrorism measures on the right to privacy, the right to freedom and nationality in Belgium. While combating terrorism clearly constitutes a legitimate aim, it is necessary to analyze the proportionality, necessity and efficiency of some measures.

The right to privacy

The first right under severe pressure in the interest of national security is the right to privacy. Many counter-terrorism measures indeed infringe on the right to privacy and possibly impact a broad range of citizens, including people who have no link with terrorism. We will highlight a few of these measures in a non-exhaustive way.

Belgium recently adopted a law concerning additional counter-terrorism measures. It introduces three new measures: an extension of the time frame for house searches, an increase of situations where surveillance methods are warranted and a system of joint databases for the sharing of information on terrorist activity between different government organs and agencies. The law was approved on 14 April 2016 after a revision that took into account an opinion of the Belgian Commission for the Protection of Privacy (CPP). Many of the comments made by the CPP were addressed in the final version of the law. One particular element however remains unchanged, namely the profiles and the kind of information that will be included in the joint database(s): the new law mentions personal and other information relating to terrorism and ‘extremism that may lead to terrorism’. Hitherto, there is no legal definition of extremism, nor is it in itself an explicit, autonomous criminal offence. A broad range of people thus may fall under the scope of application of the law. This of course raises questions with regard to the proportionality of the measure. Moreover, the necessity of the establishment of a new databases is also questionable. As noticed by the CPP, some adjustments to the database of the Coordination Unit for Threat Assessment (OCAD) and its working files already seem sufficient to achieve the pursued aims.

An additional measure limiting the right to privacy is the government’s proposal regarding a new law regulating the use of Passenger Name Record (PNR) data. The use of PNR data entails the transfer by airline companies of detailed personal information to the government. Bearing in mind the recently adopted Directive by the EU parliament as well as the national and international case law on data-retention legislation, this measure seemingly encroaches on the right to privacy.

Any infringement of fundamental rights and freedoms should be prescribed by law, serve a legitimate aim, be necessary and proportionate. Firstly, the Belgian measure goes beyond the legitimate aim – combating terrorism or severe criminality – prescribed by the Directive by also seeking to reduce illegal immigration. Secondly, the Belgian proposal is disproportionate. The EU Directive primarily concerns the transfer of personal data of passengers (PNR) of flights to or from third countries (extra-Schengen). The Belgian PNR proposal provides for the collection of data of all passengers arriving, leaving or passing Belgian territory. It is important to note that according to the Belgian CPP the transfer of data relating to intra-Schengen flights indirectly comes down to the reintroduction of controls at the intra-Schengen borders, amounting to a breach of the Schengen agreement, which is a part of EU law. Finally, it is questionable whether this mass scale collection of data meets the necessity requirement. In 2014, the Court of Justice of the EU already struck down the idea of blanc data retention by invalidating the data retention Directive since it amounted to a violation of the right to privacy. Mass retention of data requires very clear and precise rules including safeguards with regard to the scope and the application of the measures concerned. Subsequently, the Belgian Constitutional Court also annulled the Belgian law executing this Directive in 2015. Moreover, according to the EDPS, the European Data Protection Supervisor, “it’s time for new approaches on data gathering, analysis, cross border cooperation information sharing and use of existing systems among law enforcement bodies. More selective and less intrusive surveillance measures based on targeted categories of flights, passengers or countries would be more legally robust and useful”.

The right to liberty

In light of the increased terrorist threat in Belgium, it has been proposed to extend the length of administrative detention up to 72 hours. This concerns the period of time during which an individual can be detained without a judicial warrant, currently set at 24 hours in article 12, para. 3 of the Belgian Constitution. An amendment to this provision might be problematic on two fronts.

On the one hand, the question was raised whether or not the Constitution can be amended at any time by the current federal legislature. According to article 195 of the Constitution, the constitutional article in question must have been listed for amendment by the previous legislature. Indeed, this occurred for article 12 of the Constitution in the revision declaration of 2014, albeit for the purpose of bringing it into conformity with the Salduz law, which concerns improved legal assistance for criminal suspects. There exists a doctrinal debate whether or not the substantive considerations in the revision declaration have binding force for the subsequent constituent assembly and hence whether or not the proposed measure is unconstitutional. However, the political opposition – whose approval is necessary as a constitutional amendment requires a two-thirds majority – is not opposing the idea of an extension of the length of administrative detention.The debate thus seems rather academic in this case.

On the other hand, certain constitutional rights may be affected by the proposed measure, in particular the principle of equality. Restrictions to fundamental rights distinguishing between two categories – terrorism suspects and suspects of other offences – must be necessary and proportionate. The objective to combat terrorism more effectively by increasing the flexibility to detain terrorism suspects and to conduct preliminary investigations, seems to constitute a legitimate aim. Furthermore, future interpretations of the concept of “terrorism offences”, which forms the basis of the distinction, are constrained by the binding nature of the Council Framework Decision on combating terrorism, which contains a definition. With regard to the proportionality of the length of detention, European law merely requires that a suspect must be brought before a judge “promptly”. Belgium is one of the few European countries applying the short limit of 24 hours, followed only by Luxemburg, Iceland, Slovenia, Bulgaria, Romania and Macedonia. The changes that would be anchored into the Constitution remain within the necessary limits and the distinction is justified. The counter-proposal by the opposition, on the contrary, includes a possibility to renew the 24-hour limit once for “regular offences”, and twice for “terrorism offences”. Such an amendment of the Constitution could, however, possibly affect every citizen following a measure initially directed only at countering terrorism.

In this light it is also interesting to mention that the Belgian Government is proposing further limits to the right to liberty when it comes to terrorist suspects. The conditions for provisional detention of terrorism suspects will become less stringent, as announced by the Council of Ministers on 24 June 2016.

The right to nationality

The possibility of revoking a terrorist’s nationality, one of the most controversial recent measures, has been introduced in Belgium since August 2015. The measure is conditional on the conviction for a terrorist offence, as described in title Iter of book II of the Criminal Code, and a sentencing to effective imprisonment of at least five years. The revocation of nationality is pronounced by the court following a request of the public prosecutor. Only Belgians with a dual nationality can be subjected to the measure. This distinction is necessary given the international obligation to prevent statelessness. Within that group, two other categories of Belgian nationals are excluded from the rule: persons born in Belgium or persons of whom one of the parents is born in Belgium. Due to the rather small group of targeted persons, the measure seems rather symbolic in nature.

After the recent terrorist attacks in Paris, France followed in Belgium’s footsteps by declaring it would resort to the stripping of nationality as an anti-terrorism measure. Such legislation necessitated an amendment of the French constitution. While some went as far as suggesting the deprivation for all nationals convicted for terrorism, regardless of their unique or dual nationality, these proposals were heavily contested by the opposition. The main point of criticism was the inefficient nature of the measure which unduly affected one of the pillars of the French Constitution –  égalité  – and the stigmatization of dual nationals by associating them with terrorism. Ultimately, President Hollande abandoned his efforts for constitutional reform.       

The concerns raised in France can comparably be raised in Belgium. Distinguishing between types of nationals appears to be a direct discrimination on the basis of nationality, which is prohibited unless it serves a legitimate aim and is proportionate to that aim. The distinction is made at two levels: firstly, between persons with a dual nationality and those with only one nationality; secondly, between the persons with a dual nationality on the basis of acquisition of the contested nationality. The former is justified by the international obligation to prevent statelessness. The latter concern was addressed by the Belgian Constitutional Court, which granted the legislator a wide margin of appreciation in this regard.

Nonetheless, it is in our opinion uncertain that this measure will effectively reach the aim of combating terrorism and whether it is proportionate. In Belgian law there is no time limit regarding the date of obtainment of the nationality after which deprivation cannot be imposed. The Court of Justice of the EU found that the time elapsed since the obtainment of the nationality is one of the elements the judiciary can take into account when ordering the measure, thus falling within its margin of appreciation. In the end, the proportionality test of this nationality measure is in the hands of the judge, which adheres to the safeguards set by the European Convention of Human Rights.

Rather than its legitimacy, the real issue at hand seems to be the appropriateness of the measure: perhaps the French had a point when questioning its effectiveness. In the event that such a bold measure would be executed in practice, will it truly combat terrorism? The revocation of nationality will result in the return of persons to a judicial system that might not be capable of tackling radicalization. This does not solve the problem, but just shifts it.

Conclusion

Recent events – Charlie Hebdo, Le Bataclan, the Brussels attacks – clearly require a firmer hand in the fight against terror. It is, however, questionable whether the measures proposed by the Belgian Government will do the trick, or form part of another act in the so called ‘security theatre’, feinting a sense of safety. Two important questions are to be tackled in this regard. From a legal human rights perspective, we are confronted with the proportionality test, which ultimately is left in the hands of the judge. Leaving the realm of pure legal considerations and delving into policy questions, we could ask ourselves whether these measures are opportune, or rather of a symbolic nature.

On a final note, these new measures often seem to be permanent in nature rather than temporary, even though they are clearly a response to specific events. Therefore, Prof. Sottiaux (KUL), and others, argued in favor of an emergency constitution which would only apply in emergency situations when derogations from certain constitutional and human rights are warranted, comparable to the situation in which France has derogated from the ECHR as a response to imminent terrorist threats. It is, however, uncertain whether an emergency constitution provides sufficient safeguards against abuse by the government who could extend the emergency situation longer than appropriate or necessary.

Concise bibliography

Commissie voor de bescherming van de persoonlijke levenssfeer (CBPL), Advies over een voorontwerp van wet betreffende de verwerking van passagiersgegevens, 16 december 2015, nr 55/2015, https://www.privacycommission.be/sites/privacycommission/files/documents/advies_55_2015.pdf

Commissie voor de bescherming van de persoonlijke levenssfeer (CBPL), Advies over een voorontwerp van wet inzake aanvullende maatregelen ter bestrijding van terrorisme, 16 december 2015, nr 57/2015,

https://www.privacycommission.be/sites/privacycommission/files/documents/advies_57_2015.pdf

EHRM 12 januari 2016, 37138/14, Szabó and Vissy/Hungary, §68.

ECJ, 8 april 2014, C‑293/12 (Digital Rights Ireland Ltd v Ireland), ECLI:EU:C:2014:238.

European Parliament legislative resolution of 14 April 2016 on the proposal for a directive of the European Parliament and of the Council on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime (COM(2011)0032 – C7-0039/2011 – 2011/0023(COD))

GwH, 14 Mei 2009, nr. 85/2009.

GwH, 11 juni 2015, nr. 84/2015

Parl.St., Kamer 2014-2015, nr. CRIV 54 PLEN 081, 7

Parl.St.Kamer 2015-2016, nr. 54-1529/1 (voorstel tot herziening Grondwet)

EUROPEAN DATA PROTECTION SUPERVISOR, EU PNR: EDPS warns against unjustified and massive collection of passenger data (press release), 25 september 2015, https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/PressNews/Press/2015/EDPS-2015-08-EDPS_PNR_EN.pdf

Popelier, P., Vandenbruwaene, W., Van Nieuwenhove, J., “Verlenging duur administratieve aanhouding – een ongrondwettige grondwetsherziening?”, Juristenkrant, 2016, afl. 321, 12-13.

Sottiaux, S., “Nood aan een noodgrondwet?”, Juristenkrant 2015, afl. 319, 12-13.

Van Cauwenberghe, K., “Kan terrorisme de rechtstaat onderuit halen?”, Juristenkrant 2015, afl. 318, 13.

Vanoost, L., Noodtoestand in Frankrijk, kan het in België ook?, http://www.dewereldmorgen.be/artikel/2015/11/17/noodtoestand-in-frankrijk-kan-het-in-belgie-ook.

Wautelet, P., Deprivation of citizenship for 'jihadists', Analysis of Belgian and French practice and policy in light of the principle of equal treatment, RIMO bundle, Boom Publishers, De Haag, 2016.

Wet van 20 juli 2015 tot versterking van de strijd tegen het terrorisme

Source image: “Homeland Security Made Perfect”, at http://www.globecartoon.com.

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