Guidance on judicial application of the EU Counter-terrorism Directive

The ICJ and partners published today Counter-terrorism and human rights in the courts: guidance for judges, prosecutors and lawyers on application of EU Directive 2017/541 on combatting terrorism (the Guidance).

The Guidance, published by the ICJ together with its partners Human Rights in Practice, Nederlands Juristen Comité voor de Mensenrechten (NJCM) and Scuola Superiore Sant’Anna di Pisa, addresses the appropriate interpretation and application of the EU Directive in practice throughout investigation, prosecution and trial, consistently with international and EU human rights law and standards.

The Guidance (Counter-terrorism and human rights in the courts: guidance for judges, prosecutors and lawyers on application of EU Directive 2017/541 on combatting terrorism) was prepared as part of the JUSTICE project, building on expert roundtables held in 2019 across the EU (in Pisa, the Hague, Madrid and Brussels) with judges, lawyers, prosecutors and other relevant experts from a number of EU Member States, as well as national studies and consultations with judges, lawyers and prosecutors in Belgium, the Netherlands, Germany, Spain, Italy and France. The project was further supported by associate partners: Magistrats Européens pour la Démocratie et les Libertés (MEDEL), Juezas y Jueces para la Democracia in Spain and Neue Richtervereinigung in Germany.

It gives a comprehensive overview of the relevant international and EU legal standards and criminal law principles on investigation, prosecution and trial of terrorism cases, based on the EU Directive, to ensure that the Directive is applied in a human rights compliant manner.

The Guidance provides in its section II an overview of applicable international law and standards in law and practice. It covers counter-terrorism law in states of emergency, rights of victims of terrorism and human rights implicated by the Directive offences (principle of legality, non-discrimination, restrictions on freedom of movement, expression, association, assembly, privacy, private and family life and the right to political participation). Section III provides specific guidance and related commentary on each of the Directive offences and section IV covers the rights of suspects in the criminal process – investigation, prosecution and trial.

The Guidance is being launched today in an on-line webinar co-hosted by MEP Saskia Bricmont the Greens from the European Parliament and the speakers include national judges and lawyers, international experts, and representatives of the European Commission, Eurojust, the EU Fundamental Rights Agency and Members of the European Parliament, see the agenda here.

Róisín Pillay, Director Europe and Central Asia Programme; roisin.pillay(a)
Karolína Babická, Legal adviser Europe and Central Asia Programme; karolina.babicka(a)

Guidance-counterterrorism-ENG-2020 (Guidance in English)
Guidance-counterterrorism-FR-2020 (Guidance in French)
Guidance-counterterrorism-ITA-2020 (Guidance in Italian)
Guidance-counterterrorism-DE-2020 (Guidance in German)
Guidance-counterterrorism-ESP-2020 (Guidance in Spanish)

Background research documents:

The summary of baseline studies related to national legal frameworks in Belgium, Italy, the Netherlands, Germany and Spain

The summary of research on national legislation in France, Greece, Cyprus, Poland, Portugal, the Czech Republic and Romania

Reports from four expert Roundtables held in April-November 2019 in Pisa (Italy), the Hague (the Netherlands), Madrid (Spain) and Brussels (Belgium)

Articles/blogs published within the Justice project: 

Adélaïde Jacquin: Religious discrimination in counterterrorism in France, Opinio Juris, 28.5.2020

Mohamed Rafik: Using Administrative Powers in Order to Combat Terrorism Brings Down the Democratic Constitutional State, Opinio Juris, 22.10.2020

Simon Bekaert: The Spanish Rapper Extradition Case Before a Belgian Court Fires up the Legal Discussion on Freedom of Expression and Other Fundamental Rights, Opinio Juris, 13.11.2020

Karolina Babicka: EU Counter-terrorism Directive 2017/541: impact on human rights and way forward at EU level, Opinio Juris, 20.11.2020

Sizaire, Vincent, On a proper application of the European Union directive on combating terrorism / Vincent Sizaire. – In: European human rights law review, issue 3 (2020), p. 205-210

Duffy, Helen, “The EU Directive and the Expansive Criminalisation of Terrorism” in Paulussen and Capone, “Returning Foreign Fighters: Responses, Challenges and Ways Forward” (2nd ed), to be published in 2021

DAUSTER, Manfred , Nationality at Stake: Repatriation of German Foreign Fighters and their Families under German Law / Manfred Dauster. – In: European Human Rights Law Review, issue 6 (2020).

Gaetana Morgante: From the perspective of the national partner to the project in Italy.

AgendasEventsNewsPublicationsThematic reports