The absence of a common
policy on terrorism

A European policy on terrorism still does not exist. From the recent summit conferences of the Ministries of the Interior and of the Union of Justice, it emerges very clearly that the greater part of the governments do not intend to relinquish their own prerogatives on the subjects of security and criminal policy. In general, the system of unanimity has functioned as a brake, up to now. One can vote by majority only if all are in agreement, which means – I believe – that the so-called “Wesphalian Model” (Held) still has the better on the integration process.
It is necessary to take note of the fact that Europe has made more progress in the economic and monetary field than in the political one, where the proper and exclusive sphere of Politics is identified in that which pertains to the security of the citizens and to the international relations.
The fight against terrorism, in fact, fits institutionally into the area of the Third pillar of the Maastricht Treaty, that relative to the cooperation in the sector of justice and internal affairs (CGAI). But the nature of the present terrorist threat causes the problem to regard also the Third pillar, that of the foreign policy, of the security and of the common defence (PESC), as the many European resolutions on the subject of terrorism, legally hinged on both the Second and the Third pillar, are demonstrating.
But Europe continues to treat terrorism as a problem of the public order and justice, favouring the instrument of law enforcement, to the contrary of what happens in the United States, where the question is simultaneously posed in terms of internal policy, of foreign policy and defence policy. Naturally, since the Declaration of the 14th September, 2001, progress has been made. But this progress does not appear to have had a decisive political character.
For example, the common Position on the fight against the financing of terrorism (2001/231PESC) allows for the application of suitable measures by the States, in line with that established by the UNO (resolution 1373/2001). In this way, the single States are free to choose the instruments they wish, to achieve the shared objective. It is a clear sign of the difficulty in constructing a common position. Something analogous can be said for both the common definition of terrorist crimes and for the exchange of information and the measures of recording and cataloguing of sensitive personal data. In the first case, it concerns a framework, within which each State must move; in the second case, it goes no further than cooperation between States, which see the Union in the role of coordinator and certainly not of a guide.
Situations of major imperativeness present, instead, the controversial European arrest warrant, which, however, together with Eurojust, enters into the area of decisions taken a long time before the 11th September, that is to say, at the Tamper Conference of the 15th and 16th of September, 1999. Furthermore, it concerns a measure which regards the judicial cooperation, not the criminal policy, much less the fight against terrorism, which is a very different thing from the prosecution of crimes and is, or should be, entrusted to governments, not to judges.
It seems that the new terrorist threat puts the European judicial tradition into serious crisis. It is an attack of indiscriminate nature, which does not aim at, at least apparently, obtaining political and territorial objectives, but at creating a situation of generalized insecurity. There are no concessions to make, nor negotiations to begin: the dimension of the conflict is global, referring not so much to its extension, but more to its structure. It is the son of “liquid” modernity (Bauman), with respect to which, the juridical paradigms constructed in the ambit of the European
“striped” space, do not have much hold. In the face of this type of threat, the same syntax of the Jus publicum europaeum (Schmitt) – which evidently survives the crisis of the national States – seems inadequate.
From this point of view, Europe seems to have all the defects of the national States of the 20th Century: centralism, bureaucracy, formalism, opacity in the decisional procedures and so on. But it does not seem, to make up for this, that it has inherited its qualities: defence of the internal and external sovereignty, monopoly in foreign policy and in that of defence, determination to face the threats.


The sharing of the historical memory
and diversity of the constitutional experiences

The uncertainty and the incoherency, with which, in Europe, the terrorist threats are faced, leave perplexity if one thinks that the Europeans have an antique familiarity with subversion and political violence, be they of an ideological or territorial nature. To remain in recent times, it is sufficient to observe that in the last thirty years, the Old Continent has known all the principle forms of attack on the institutions and on the civil community life, from the armed struggle of a national-ethnic nature, struggles of a political nature, to the terrorism of the Middle East matrix.
There is, in Europe, a sharing of the historical memory of terrorism and, in particular, of the risks connected to the scarce commitment of the democracies in defending themselves from their enemies. We only have to think of the weight which had, in our constitutional culture, from the post-war period of the 2nd W.W. to the end of the 70’s, the debate over the Weimar Republic crisis and of its excessive adherence to the system of guarantees with regard to its own internal enemies. On the other hand, over the years, each country has faced the terrorist threat as an internal problem, through the instruments elaborated in the ambit of their own institutional culture. So that, when the problem of constructing a common European policy against terrorism presented itself, each country continued to adopt the paradigm of the “internal” problem, trying, not so much to integrate the various European political experiences in the ambit of a new and common constitutional path, as to find the minimum common denominator between the various Countries, in an essentially non-political key, but according to the cases, technical-judicial or technical police.
Therefore, for the construction of a European policy regarding the fight against terrorism, it would be necessary to re-consider the different constitutional experiences with the scope, not to find points of synthesis and analogy, but to identify a common inspiring philosophy, on which basis an integrated policy against terrorism could be constructed, not limited to the questions of public order.
We shall now take into consideration the experiences of certain principle European Countries which, besides being targets of international terrorism, have had experience of subversion or political violence and whose constitutional courses, at the same time, can be considered ideal-typical as regards the evolution of the western constitutionalism: Great Britain, France, Spain, Italy and Germany.


Pragmatism and the rule of guarantees
in the evolution of the British system: the growing
role of public opinion

Naturally, first of all, it is necessary to make a major distinction between the United Kingdom, native land of the Common Law, on the one side, and the Euro-continental Countries, of Roman law tradition, on the other. We shall see how such a distinction, even if in substance, only somewhat relative, can be useful on the analytical level.
The Anglo-Saxon model, originally characterized by a rigorous balance between the Crown and Parliament, has seen the slow growth of the weight of the Government and the relative weakening of the role of control of Parliament. On the other hand, an always more incisive function is exercised by public opinion, which by now, represents the principle element of balance, in relation to the system of guarantees for the rights and liberty of the individual.

Martial law is the principle institute to face an emergency: originally utilized by the Crown with the sharp-eyed surveillance of Parliament, and is now in the hands of the Prime Minister, who can count on the support of the parliamentary majority, of which he is head. So that, the heads of Government can act by way of exception to the constitutional rights in particular occasions. Parliament subsequently intervenes with an Indemnity Act, which represents post-justification for the conduct of the Government.
The philosophy which animates this mechanism is that the limitation of the exercise of certain rights is not the result of governmental choice, but is the consequence of the verification of an emergency: for example, the recourse to military jurisdiction can be explained by the fact that the ordinary courts may not be in the material conditions to operate; in fact, it is true that the civil jurisdiction is re-established immediately the emergency ceases, with retro-active effects. It is important to keep in mind that interference from the judges is not permitted and they are not allowed to contest or annul the decisions of Parliament or the Government.
However, the absolute supremacy of Parliament, which for many aspects sustains the leadership of the Prime Minister, has created certain problems in the process of European integration. For example, the Human Right Acts of 1998 establishes that in the case of incompatibility between a European rule and the national rule, the question is again put before Parliament, which, inasmuch as it promulgated the Bill of Rights, it is the only body entitled to regulate the carrying out of the matter. In this sense, it is possible to put leverage on the Art. 15 CEDU, for the safeguard of the rights of man and the fundamental liberties, which provides, in the case of emergency, the re-establishment of the sovereignty of the States in matters of the derogation of fundamental rights. In spite of this, the weight of the Government is steadily increasing.
With the promulgation of the Anti-Terrorism Act of 2001, heavy limitations have been put on the right to privacy and personal liberty, when there are grave dangers to the public security. In particular, a strong prevalence of the administrative decisional chain is provided for, with regard to the jurisdiction and the ample powers of the security and intelligence forces.
According to the Anti-Terrorism Act of 2005, if a foreign citizen accused of terrorism cannot be extradited because in his country of origin he would risk the death penalty (Charter of Fundamental Rights of the European Union, Art. 19, para 2), in this case, he can be held in prison for an indefinite period. The citizen can appeal to the Special Appeals Commission (SIAC), but the Government can utilize its power in the matter of definition of “terrorist threat” to avoid the obstacle. After a series of appeals, it was agreed to give Parliament the faculty of vesting the Secretary of State, with the power to issue Control Orders: that is to say, restrictive measures not necessarily of a detaining character. A fundamental role in the instruction of the practice is played by the MI5, the internal Secret Service, whose powers in the matter have been further extended after the 7th July, 2005 attack, with the Terrorism Act of the 30th of March, 2006. A further turn of the screw proposed by the Government through the prevision of a 3 month term of preventive imprisonment met with the hard opposition of public opinion and was rejected by Parliament. It is a factual demonstration that the system possesses antibodies within itself against the degeneration of authority, even if written rules are lacking which limit the sovereignty of Parliament.


The confirmation of the supremacy of the political
decision in France

As far as the systems of Continental Europe are concerned, these are not considered as a monolithic block. There are Countries which have a clear discipline of the state of exception, like France, Spain and Germany: And others, like Italy, where no explicit “Constitution of Emergency” exists. Among the first, it is necessary to distinguish which ones provide forms of limitation to the exercise of certain rights, like France and Spain, and others, like Germany, where only very mild limitations exist.
With regard to the French system, its characteristic can be seen in the “Republican paradigm” on the basis of which the security of the Nation is the pre-condition for the defence and the diffusion of rights and liberty. A paradigm which is at the origin of the same V Republic, starting from the Algerian crisis of 1956, and which returns in all critical moments: the coup d’état of 1961, the student revolt of 1968, the crisis of New Caledonia of 1985, the Al-Qaida attack on the United States and the Banlieu revolt of 2005.
The fact is indicative that one of the principle measures of emergency – l’état d’urgence – is not contained in the Constitution: it belongs to the legislation preceding the V Republic, even though it marks, in some way, the birth of the latter, insofar as it was used on the very occasion of the Algerian crisis (Law 55-385/1955). It lasts 12 days, unless Parliament decides to extend it, and allows the carrying out of a kind of generalized curfew, with recourse to military justice in extreme cases.
When this emergency measure was adopted to suppress the Banlieu revolt, in the winter of 2005/2006, no appeal to Art. 15 CEDU was made. This fact gave rise to a protest appeal against the violation of the liberty of residence (Art. 9. CEDU), and that of the freedom of meeting (Art. 11 CEDU), but the State Council acknowledged that the emergency could be legitimately managed only by the heads of Government.
Referring, instead, to the Constitutional text, the President of the Republic can assume powers of emergency, also in derogation of the constitutional guarantees: (Art. 16, French Constitution). Certainly, it must regard a very grave and imminent emergency, which concerns the sovereignty of the Nation. On the other hand, there is no jurisdictional control, unless one wishes to index in this way, the obligatory consultation, but not binding, of the Head of State with the Conseil Constitutional. The eventual appraisal, from the parliamentary or judicial areas, of the conduct of the President is deferred to after the emergency. But it would be somewhat difficult to proceed against a President who, with great ease, could claim the merit of having saved the Homeland.
Unlike the exceptional powers, measures of emergency for the “state of siege”, covered by Art. 36, of the Constitution, are not taken on the autonomous initiative of some constitutional body, but it is the result of a decision between the Government and Legislature. The mechanism is substantially the same as that of the state of emergency, but with greater attention to the guarantee of rights, which can be limited only according to a regulation expressively foreseen by the law.
Analogous orientation to emphasize the pre-eminence of the political decision prevails in the ambit of ordinary legislation, especially after the attacks on the World Trade Centre. For example, this is the case for the Law 2006/64 of the 23rd January, 2006, with which the anti-terrorism rules of the Law 86/1020 of September, 1986 are integrated.
With this law, the period necessary for the condemned naturalized citizen to reacquire or change French nationality is brought to five years.

In general, more severe punishments are introduced for all crimes in any way traced to or connected with the terrorist threat, and ample powers are given to the forces of law and order, concerning searches, video-surveillance and line tapping. In this last question, the Constitutional Judge has indicated a clear direction towards making security reasons prevail over those of liberty.


The rejection of the emergency legislation
in Spain and Italy

However, not in all Countries where the derogation criteria are applied to the fundamental rights, are there such ample discretionary powers by the Government. In Spain, for example, the derogation to the fundamental rights is rigidly disciplined with a precise list of the rights in question (Art. 55 of the Constitution). While a severe jurisdictional control on the decisions of the police are exercised, also in the case of terrorist suspects.
The Tribunal Constitucional, however, established that a detainee can be held in total isolation only if the Judge expressly asks the validation of the measure (Tribunal Constitucional, 4.71/1994). With time, the Tribunal has shown relatively more attention to the needs of the security. For example, it judged as non-unconstitutional the rules which provide for judicial legitimization after the event, and the house-breaking by the police force; judging these violations as motivated exceptions as provided for by the Constitution in such matters. In the same sense, it moved onto the political level, when, in 2002, the failure to disown terrorism was considered a legitimate cause for dissolving a political party.
In all, after the attacks of March 11th, 2004 in Madrid, the terrorist emergency has not been utilized to make significant legislative modifications in matters of security and freedom. We must keep in mind, however, that there exists the possibility for the Government to intervene through a decree of emergency - always with the sanction of Parliament (Art. 86 of the Constitution).
This possibility is provided for also in the Italian system (Art. 77 of the Constitution), where, however, unlike Spain, a constitutional discipline of the states of emergency is not given. In Italy, there is a symmetrical pattern between the security policy and the political one. The state of necessity has tended, after the end of the Cold War, to be interpreted as an intra ordinem source, rather than extra ordinem.

In the same way, as far as the terrorist threat is concerned, it has always excluded the use of special legislation, also during the so-called “anni di piombo” (lit. “the years of lead”: meaning, bullets). And this philosophy has not been abandoned with the exacerbation of the international terrorist threat.
Both at the legislative level and at the governmental level, one proceeds within the perimeter of the constitutional rules, trying to enhance, to the maximum, the preventive and repressive instruments that are available, with particular reference to the powers already recognized to the Government in matters of security.
In this regard, we could speak of an orientation to discipline – in particular situations of necessity – a determinate form of enjoyment of determinate rights. A paradigm, to tell the truth, very similar to that used in the Anglo-Saxon system, where the non-enjoyment of a right occurs, not by government decision, but for the material impossibility for the same government to guarantee the normality in certain given situations. Besides, it could not be otherwise, since the Republic recognizes the inviolable rights of man (Art. 2 of the Constitution).
In fact, where a totally exceptional situation has to be faced, to the extend that it compromises the very functioning of the institutions and the communication within the Country, then, it would be possible to resort to the State of war (Art. 78 of the Constitution) and render applicable the related duty of the defence of the Homeland (Art. 52 of the Constitution). In this context, the Parliament can confer on the Government the powers to face the emergency. In this phase, it could be possible to issue rules of derogation to the existent legislative framework in matters of constitutional rights, however, acting only on certain forms of enjoyment of the rights themselves.
It does not appear that the guarantees system of our Constitution has been of hindrance, up till now, to the rapidity and efficiency of the system’s reaction to an emergency. After the attacks of 7th July, 2005 in London, the House of Deputies and the Senate of the Republic, in very few days, approved a decree bearing urgent measures for the fight against international terrorism. And they did it, performing their real function with deep thoroughness, that is to say, discussing and bringing modifications, also significant ones, to the proposal of the Government
(Decree Law, 27,2,05 nr. 144, converted into law 31.7.05 nr. 155). It was rejected – it was said in Assembly – the logic of the “war on terrorism” would have placed the Republic on the same level as the terrorists.

Italy’s problem seems to be, rather more, that of the responsibility of the criminal policy, which should be fall upon the Government, but which, in fact, is often exercised by the magistracy, not so much due to the obligatory nature of the criminal action, as to the expansion of the judicial power which accompanies the crisis of the Italian political system since the years of the emergence of terrorism.
Solutions to these problems are sought by the reform of the information and security services, begun in the XV Legislature, which, as the President of the Commission of Constitutional Affairs of the House, explains, takes the intelligence beyond the logic of the “cold war” (Violante – Italian Politician).


Germany seeks to surmount
the schemes of the cold war

Also the German “Constitution for conditions of emergency” visibly reflects the climate of the cold war.
Both the state of “tension” and the state of “defence” provided for by the Fundamental Law (Art. 80a and entire title Xa) refer to military-type threats coming from abroad. The passage from the first to the second level of alarm is marked by a certain militarization of the management of the emergency and by a diminution of the State autonomy and of the legislative process.
In the German Fundamental Law, the experience of the Weimar Republic is strongly felt. It provides for, in fact, that anyone who, to fight the liberal and democratic constitutional order, abuses of the liberty of the expression of thought (Art. 18 of the Fundamental Law), in particular, of the liberty of the press (see Art. 5.1st para of the Fundamental Law), of the liberty of teaching (see Art. 5. 3rd para of the Fundamental Law), of the liberty of meeting (see Art. 8 of the Fundamental Law), of the liberty of association (see Art. 9 of the Fundamental Law), the secrecy of correspondence, postal or telecommunications (see Art. 10 of the Fundamental Law), of the right of property (see Art. 14 of the Fundamental Law) or of the right to asylum (see Art 16° of the Fundamental Law) cannot enjoy these same fundamental rights.
The overall system is, however, strongly pro-guarantees of individual rights. The limitation of the exercise of any fundamental rights can come about only with a law of a general character, extremely detailed in its reference to the rights in question (Art. 19 of the Fundamental Law).
A fundamental role is played by the Constitutional Court of Law, which has rejected any attempt to limit its power of defining the parameter within which the Legislator must move to discipline determinate forms of the exercise of the fundamental rights.
The German System assents to respond to the internal threats also through a declination in security terms of the principal of cooperative federalism. There, in fact, where the existence or the democratic order of a Land is endangered, the latter can request the help from the police forces of other Länder, just as from the forces and institutions of other administrations and from the Federal Frontier Police (Art. 91 of the Fundamental Law). Where the Land on which the danger falls is not in the conditions to cope with the situation, the Federal Government can impose instructions on the police of such Land and the police forces of other Länder, just as, in the same, it can employ units of the Federal Frontier Police.
There were, obviously, changes after the 11th of September; these did not concern the regime of the derogations, but rather those of the constitutional rules established to safeguard the Constitution against those who would make use of the democratic guarantees to threaten the democracy itself. In this sense, the constitutional discipline regarding the prohibition of creating associations whose aims and values are in contrast with the Constitution and which threaten the tolerance and dialogue between peoples or endanger the existence of the Republic (see Fundamental Law 21,2 – a rule utilized against extremists of the Right and the Left), has become much more severe.

However, the impact of the new terrorist threats on the German legislation has determined also paradoxical effects. For example, the Legislator, in 2004, tried to face the new syntax of terror, treating the attack by means of civil aircraft in the way of a military disaster, as this comes under the competence of the Ministry of Defence (Art. 35 of the Fundamental Law). It is the only case in which military operative and decisional instruments can be used within the civil bounds. The decision, therefore, for the possible shooting down of the aeroplane would have to have been taken by the Minister of Defence. But the Constitutional Court of Law partially rejected the rule (Sentence of the Federal Constitutional Court of Law, BverGE, 1BvR 357/05). In the first place, according to the Constitutional Judge, it would have been a violation of the human dignity of the passengers, treated like inanimate objects. In the second place, the military intervention must be exclusively considered as technical-logistical assistance, which can not imply the control of the emergency in question with rules of a bellicose nature. Except for defence, the armed forces can be employed only to the extent to which the Fundamental Law explicitly allows it (Art. 87a of the Fundamental Law).


The common refusal to barter between security
and liberty and the premises for
an anti-terrorist common policy

It seems that from this panorama a very varied picture emerges. But, it is not said that from this variety coherent solutions may not come about, during the course of the process of integration.
Within the experiences dealt with above, it is not difficult to find values and common conceptual schemes. For example, the principle according to which, whatever limitation of the fundamental rights must be limited in time and space, anchored to needs that are clearly perceived by public opinion, is common. In fact, where the European Court of Human Rights has intervened, it has done so, not with reference to the questioning of the principles contained in the European Convention of Human Rights, but with specific reference to the assessments made by the Government of the Country, in questions about the “the margin of appreciation” (Art. 15 CEDU) at its disposal in the evaluation of the necessary measures for the protection of human rights. Therefore, the terrorist logic of the barter between security and liberty is rejected. The idea that the democratic guarantees cannot be used to threaten the democratic order appears to be equally common. In other words, it appears that the right of the democracy to defend itself against its enemies is definitively affirmed.
One can ask: Is the projection of this philosophy on a European level possible?
Certainly, the formation of an integrated discipline in the matter of the fight against terrorism represents the new frontier for the construction of a European policy, after the economic and the judicial ones.


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