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Directive (EU) 2017/541 of the European Parliament and of the CouncilShow full title

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

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TITLE I SUBJECT MATTER AND DEFINITIONS

Article 1Subject 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 2Definitions

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 3Terrorist offences

1.Member States shall take the necessary measures to ensure that the following intentional acts, as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation, are defined as terrorist offences where committed with one of the aims listed in paragraph 2:

(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 Council(1) 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).

2.The aims referred to in paragraph 1 are:

(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 4Offences 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 5Public 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 6Recruitment 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 7Providing 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 8Receiving 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 9Travelling for the purpose of terrorism

1.Each Member State shall take the necessary measures to ensure that travelling to a country other than 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 is punishable as a criminal offence when committed intentionally.

2.Each Member State shall take the necessary measures to ensure that one of the following conducts is punishable as a criminal offence when committed intentionally:

(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 10Organising 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 11Terrorist financing

1.Member States shall take the necessary measures to ensure that providing or collecting funds, by any means, directly or indirectly, with the intention that they be used, or in the knowledge that they are to be used, in full or in part, to commit, or to contribute to the commission of, any of the offences referred to in Articles 3 to 10 is punishable as a criminal offence when committed intentionally.

2.Where the terrorist financing referred to in paragraph 1 of this Article concerns any of the offences laid down in Articles 3, 4 and 9, it shall not be necessary that the funds be in fact used, in full or in part, to commit, or to contribute to the commission of, any of those offences, nor shall it be required that the offender knows for which specific offence or offences the funds are to be used.

Article 12Other 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 13Relationship 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 14Aiding and abetting, inciting and attempting

1.Member States shall take the necessary measures to ensure that aiding and abetting an offence referred to in Articles 3 to 8, 11 and 12 is punishable.

2.Member States shall take the necessary measures to ensure that inciting an offence referred to in Articles 3 to 12 is punishable.

3.Member States shall take the necessary measures to ensure that attempting to commit an offence referred to in Articles 3, 6, 7, Article 9(1), point (a) of Article 9(2), and Articles 11 and 12, with the exception of possession as provided for in point (f) of Article 3(1) and the offence referred to in point (j) of Article 3(1), is punishable.

Article 15Penalties for natural persons

1.Member States shall take the necessary measures to ensure that the offences referred to in Articles 3 to 12 and 14 are punishable by effective, proportionate and dissuasive criminal penalties, which may entail surrender or extradition.

2.Member States shall take the necessary measures to ensure that the terrorist offences referred to in Article 3 and offences referred to in Article 14, insofar as they relate to terrorist offences, are punishable by custodial sentences heavier than those imposable under national law for such offences in the absence of the special intent required pursuant to Article 3, except where the sentences imposable are already the maximum possible sentences under national law.

3.Member States shall take the necessary measures to ensure that offences listed in Article 4 are punishable by custodial sentences, with a maximum sentence of not less than 15 years for the offence referred to in point (a) of Article 4, and for the offences listed in point (b) of Article 4 a maximum sentence of not less than 8 years. Where the terrorist offence referred to in point (j) of Article 3(1) is committed by a person directing a terrorist group as referred to in point (a) of Article 4, the maximum sentence shall not be less than 8 years.

4.Member States shall take the necessary measures to ensure that when a criminal offence referred to in Article 6 or 7 is directed towards a child, this may, in accordance with national law, be taken into account when sentencing.

Article 16Mitigating circumstances

Member States may take the necessary measures to ensure that the penalties referred to in Article 15 may be reduced if the offender:

(a)

renounces terrorist activity; and

(b)

provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, helping them to:

(i)

prevent or mitigate the effects of the offence;

(ii)

identify or bring to justice the other offenders;

(iii)

find evidence; or

(iv)

prevent further offences referred to in Articles 3 to 12 and 14.

Article 17Liability of legal persons

1.Member States shall take the necessary measures to ensure that legal persons can be held liable for any of the offences referred to in Articles 3 to 12 and 14 committed for their benefit by any person, acting either individually or as part of an organ of the legal person, and having a leading position within the legal person, based on one of the following:

(a)

a power of representation of the legal person;

(b)

an authority to take decisions on behalf of the legal person;

(c)

an authority to exercise control within the legal person.

2.Member States shall also take the necessary measures to ensure that legal persons can be held liable where the lack of supervision or control by a person referred to in paragraph 1 of this Article has made possible the commission of any of the offences referred to in Articles 3 to 12 and 14 for the benefit of that legal person by a person under its authority.

3.Liability of legal persons under paragraphs 1 and 2 of this Article shall not exclude criminal proceedings against natural persons who are perpetrators, inciters or accessories in any of the offences referred to in Articles 3 to 12 and 14.

Article 18Sanctions for legal persons

Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 17 is punishable by effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines and may include other sanctions, such as:

(a)

exclusion from entitlement to public benefits or aid;

(b)

temporary or permanent disqualification from the practice of commercial activities;

(c)

placing under judicial supervision;

(d)

a judicial winding-up order;

(e)

temporary or permanent closure of establishments which have been used for committing the offence.

Article 19Jurisdiction and prosecution

1.Each Member State shall take the necessary measures to establish its jurisdiction over the offences referred to in Articles 3 to 12 and 14 where:

(a)

the offence is committed in whole or in part in its territory;

(b)

the offence is committed on board a vessel flying its flag or an aircraft registered there;

(c)

the offender is one of its nationals or residents;

(d)

the offence is committed for the benefit of a legal person established in its territory;

(e)

the offence is committed against the institutions or people of the Member State in question or against an institution, body, office or agency of the Union based in that Member State.

Each Member State may extend its jurisdiction if the offence is committed in the territory of another Member State.

2.Each Member State may extend its jurisdiction over providing training for terrorism as referred to in Article 7, where the offender provides training to its nationals or residents, in cases where paragraph 1 of this Article is not applicable. The Member State shall inform the Commission thereof.

3.When an offence falls within the jurisdiction of more than one Member State and when any of the Member States concerned can validly prosecute on the basis of the same facts, the Member States concerned shall cooperate in order to decide which of them will prosecute the offenders with the aim, if possible, of centralising proceedings in a single Member State. To this end, the Member States may have recourse to Eurojust in order to facilitate cooperation between their judicial authorities and the coordination of their action.

Account shall be taken of the following factors:

(a)

the Member State shall be that in the territory of which the offence was committed;

(b)

the Member State shall be that of which the offender is a national or resident;

(c)

the Member State shall be the country of origin of the victims;

(d)

the Member State shall be that in the territory of which the offender was found.

4.Each Member State shall take the necessary measures also to establish its jurisdiction over the offences referred to in Articles 3 to 12 and 14 in cases where it refuses to surrender or extradite a person suspected or convicted of such an offence to another Member State or to a third country.

5.Each Member State shall ensure that its jurisdiction covers cases in which any of the offences referred to in Articles 4 and 14 has been committed in whole or in part within its territory, regardless of where the terrorist group is based or pursues its criminal activities.

6.This Article shall not exclude the exercise of jurisdiction in criminal matters as laid down by a Member State in accordance with its national law.

Article 20Investigative tools and confiscation

1.Member States shall take the necessary measures to ensure that effective investigative tools, such as those which are used in organised crime or other serious crime cases, are available to persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 3 to 12.

2.Member States shall take the necessary measures to ensure that their competent authorities freeze or confiscate, as appropriate, in accordance with Directive 2014/42/EU of the European Parliament and of the Council(2), the proceeds derived from and instrumentalities used or intended to be used in the commission or contribution to the commission of any of the offences referred to in this Directive.

Article 21Measures against public provocation content online

1.Member States shall take the necessary measures to ensure the prompt removal of online content constituting a public provocation to commit a terrorist offence, as referred to in Article 5, that is hosted in their territory. They shall also endeavour to obtain the removal of such content hosted outside their territory.

2.Member States may, when removal of the content referred to in paragraph 1 at its source is not feasible, take measures to block access to such content towards the internet users within their territory.

3.Measures of removal and blocking must be set following transparent procedures and provide adequate safeguards, in particular to ensure that those measures are limited to what is necessary and proportionate and that users are informed of the reason for those measures. Safeguards relating to removal or blocking shall also include the possibility of judicial redress.

Article 22Amendments to Decision 2005/671/JHA

Decision 2005/671/JHA is amended as follows:

(1)

in Article 1, point (a) is replaced by the following:

‘(a)

“terrorist offences”: the offences referred to in Directive (EU) 2017/541 of the European Parliament and of the Council(3);

(2)

Article 2 is amended as follows:

(a)

paragraph 6 is replaced by the following:

6.Each Member State shall take the necessary measures to ensure that relevant information gathered by its competent authorities in the framework of criminal proceedings in connection with terrorist offences is made accessible as soon as possible to the competent authorities of another Member State where the information could be used in the prevention, detection, investigation or prosecution of terrorist offences as referred to in Directive (EU) 2017/541, in that Member State, either upon request or spontaneously, and in accordance with national law and relevant international legal instruments.;

(b)

the following paragraphs are added:

7.Paragraph 6 is not applicable where the sharing of information would jeopardise current investigations or the safety of an individual, nor when it would be contrary to essential interests of the security of the Member State concerned.

8.Member States shall take the necessary measures to ensure that their competent authorities take, upon receiving the information referred to in paragraph 6, timely measures in accordance with national law, as appropriate..

Article 23Fundamental rights and freedoms

1.This Directive shall not have the effect of modifying the obligations to respect fundamental rights and fundamental legal principles, as enshrined in Article 6 TEU.

2.Member States may establish conditions required by, and in accordance with, fundamental principles relating to freedom of the press and other media, governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where such conditions relate to the determination or limitation of liability.

TITLE V PROVISIONS ON PROTECTION OF, SUPPORT TO, AND RIGHTS OF VICTIMS OF TERRORISM

Article 24Assistance and support to victims of terrorism

1.Member States shall ensure that investigations into, or prosecution of, offences covered by this Directive are not dependent on a report or accusation made by a victim of terrorism or other person subjected to the offence, at least if the acts were committed on the territory of the Member State.

2.Member States shall ensure that support services addressing the specific needs of victims of terrorism are in place in accordance with Directive 2012/29/EU and that they are available for victims of terrorism immediately after a terrorist attack and for as long as necessary. Such services shall be provided in addition to, or as an integrated part of, general victim support services, which may call on existing entities providing specialist support.

3.The support services shall have the ability to provide assistance and support to victims of terrorism in accordance with their specific needs. The services shall be confidential, free of charge and easily accessible to all victims of terrorism. They shall include in particular:

(a)

emotional and psychological support, such as trauma support and counselling;

(b)

provision of advice and information on any relevant legal, practical or financial matters, including facilitating the exercise of the right to information of victims of terrorism, as laid down in Article 26;

(c)

assistance with claims regarding compensation for victims of terrorism available under the national law of the Member State concerned.

4.Member States shall ensure that mechanisms or protocols are in place allowing for activation of support services for victims of terrorism within the framework of their national emergency-response infrastructures. Such mechanisms or protocols shall envisage the coordination of relevant authorities, agencies and bodies to be able to provide a comprehensive response to the needs of victims and their family members immediately after a terrorist attack and for as long as necessary, including adequate means facilitating the identification of and communication to victims and their families.

5.Member States shall ensure that adequate medical treatment is provided to victims of terrorism immediately after a terrorist attack and for as long as necessary. Member States shall retain the right to organise the provision of medical treatment to victims of terrorism in accordance with their national healthcare systems.

6.Member States shall ensure that victims of terrorism have access to legal aid in accordance with Article 13 of Directive 2012/29/EU, where they have the status of parties to criminal proceedings. Member States shall ensure that the severity and the circumstances of the criminal offence are duly reflected in the conditions and procedural rules under which victims of terrorism have access to legal aid in accordance with national law.

7.This Directive shall apply in addition, and without prejudice, to measures laid down in Directive 2012/29/EU.

Article 25Protection of victims of terrorism

Member States shall ensure that measures are available to protect victims of terrorism and their family members, in accordance with Directive 2012/29/EU. When determining whether and to what extent they should benefit from protection measures in the course of criminal proceedings, particular attention shall be paid to the risk of intimidation and retaliation and to the need to protect the dignity and physical integrity of victims of terrorism, including during questioning and when testifying.

Article 26Rights of victims of terrorism resident in another Member State

1.Member States shall ensure that victims of terrorism who are residents of a Member State other than that where the terrorist offence was committed have access to information regarding their rights, the available support services and compensation schemes in the Member State where the terrorist offence was committed. In this respect, Member States concerned shall take appropriate action to facilitate cooperation between their competent authorities or entities providing specialist support to ensure the effective access of victims of terrorism to such information.

2.Member States shall ensure that all victims of terrorism have access to the assistance and support services as laid down in points (a) and (b) of Article 24(3) on the territory of the Member State of their residence, even if the terrorist offence was committed in another Member State.

TITLE VI FINAL PROVISIONS

Article 27Replacement of Framework Decision 2002/475/JHA

Framework Decision 2002/475/JHA is replaced with regard to the Member States bound by this Directive, without prejudice to the obligations of those Member States with regard to the date for transposition of that Framework Decision into national law.

With regard to the Member States bound by this Directive, references to Framework Decision 2002/475/JHA shall be construed as references to this Directive.

Article 28Transposition

1.Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 8 September 2018. They shall immediately inform the Commission thereof.

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2.Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.

Article 29Reporting

1.The Commission shall, by 8 March 2020, submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures to comply with this Directive.

2.The Commission shall, by 8 September 2021, submit a report to the European Parliament and to the Council, assessing the added value of this Directive with regard to combating terrorism. The report shall also cover the impact of this Directive on fundamental rights and freedoms, including on non-discrimination, on the rule of law, and on the level of protection and assistance provided to victims of terrorism. The Commission shall take into account the information provided by Member States under Decision 2005/671/JHA and any other relevant information regarding the exercise of powers under counter-terrorism laws related to the transposition and implementation of this Directive. On the basis of this evaluation, the Commission shall, if necessary, decide on appropriate follow-up actions.

Article 30Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 31Addressees

This Directive is addressed to the Member States in accordance with the Treaties.

Done at Strasbourg, 15 March 2017.

For the European Parliament

The President

A. TAJANI

For the Council

The President

I. BORG

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