Anti-Terrorism Laws of France & Germany (FAQs)

1. Which terrorism-related laws are enacted in France and Germany?
2. How is the term "terrorism" defined in the legislations of these countries?
3. What are the areas that should be taken into consideration with these laws?

1. Which terrorism-related laws are enacted in France and Germany?

France:

France relies on the criminal justice system to combat terrorism[v]. In 1986, a law centralizing a judicial system for terrorism offences, which extended police custody to 4 days was introduced. As a result of the terrorist mishaps that took place in Paris’s metro in 1995, the law was amended/extended in 1996. The 1996 law enables the agencies responsible for terrorism-related issues to take pre-emptive actions to defer any expected terrorist crimes. As amended in the latter law, acts of terrorism are set forth in articles 421-1 to 421-5 of the criminal code (Code Pénal)[vi].

After the September 11^th attacks a number of laws related to money laundering were extended to include the financing of terrorism[vii]. After the July 2005 bombings in London, the 2006 law was enacted to increase the punishment of a serious felony to 20 years when a terrorist criminal association was formed, and up to 30 years to the leaders of such criminal association. Moreover, the 2006 law increased –under certain conditions- the maximum period of police custody in terrorism cases to six days[viii].

On December 1^st 2008, France’s National Assembly adopted legislation aimed at prolonging (to 31 December 2012) the applicability of the 2006 Anti-Terrorism Law on the administrative acquisition of personal data, controls in trains and law enforcement access to databases[ix].


Germany:

Membership of a terrorist organization is made illegal under article 129a of the German Criminal Code (Strafgesetzbuch, StGB)[x]. Specific anti-terrorism measures include the 2001 and 2002 Anti-Terrorism Package. After the September 11^th attacks a German legislation (which was prepared before the attacks) was adopted as the 2001 First Anti-Terrorism Package. A more direct response to the attacks on the US was crystallized in the 2002 Second Anti-Terrorism Package. However, the 2002 act has been supplemented by the 2007 Act Supplementing the Anti-Terrorism Act (Terrorismusbek?mpfungserg?nzungsgesetz)[xi].

A US State Department report states that with the extension of the 2002 law for five years, now the role of intelligence services in Germany in counter-terrorism activities has been broadened and the extension has made it easier for security agencies to obtain personal data of suspects such as travel, financial, and telephone data[xii].

2. How is the term "terrorism" defined in the legislations of these countries?

It is known that there is not one unified universal definition for the term terrorism partly because one man’s terrorist is another man’s freedom fighter, and also because of daily developments that occur which would make it very difficult to encompass all acts of terrorism in one definition. Thus, defining terrorism remains a subject for discussion in international bodies and forums.

France:

France defines terrorism as “an act by an individual or group that uses intimidation or terror to disrupt public order[xiii]". As seen, the law is very broad and could cover any activity that causes disruption to the public order even if “just” a criminal act.


Germany:

Article 129a of the Criminal Code defines terrorism as “unlawfully coercing an administrative body or an international organization or of abolishing or significantly impairing the political, constitutional, economic or social structures of a state or an international organization[xiv]”.This led critiques to describe Germany’s terrorism definition as “no specific definition” with no additions to the substantive law since the 11^th of September attacks on the US[xv]. Yet, some procedural changes have been made in 2002 to reinforce the “policing of domestic terrorists”.

3. What are the areas that should be taken into consideration with these laws?

Terrorism laws and acts in these countries allow the responsible authorities to undertake many measures for the combat of terrorism. Thus, in the following list of questions and answers we shall shed light on the developments in detention-related matters, control orders, diplomatic assurances vs. the expulsion/ deportation of terrorist suspects, impact on asylum laws and regulation, civil liberties (freedom of speech, the criminalization of thoughts; access to data and personal privacy), how ethnicity is used as a ground for detaining terrorism suspects, and Muslims being the victims of suspicion in most cases.


i. Period of detention:

France:

The 2006 law increased –under certain conditions- the maximum period of police custody in terrorism cases to six days. The norm is that the suspect is held up to four days for police questioning, and increases to six days when there is proof an attack is being prepared, after that the case is transferred to an investigating judge; this means that the suspect might stay in detention for long periods, yet he/she has the right to appeal against it.


Germany:

Germany does not have pre-charge detention, but acts within “Provisional Police Custody[xvi]”, which is the period before a formal warrant of arrest is issued by a court. The longest period is 2 days (48 hours) as the person arrested must be set free at the end of the day following the day he/she was arrested.


ii. The right to remain silent!

France:

Suspects are not entitled to see their lawyer until after 72 hours, and even then the lawyer is usually only allowed 30 minutes with the suspect. The suspect can usually notify his representatives of his arrest, but that privilege can be denied by the prosecutor if it is believed it might prejudice investigations (often is in terrorism cases). The suspect is also NOT notified of his/her right to silence and can be interrogated without his/her lawyer present^[xvii].


Germany:

Section 38a of the Incommunicado detention legislation enacted in 2006 in Germany to be used in terrorism related cases and others (such as mafia) gives possibility that detainees (terrorism suspects) be completely isolated from their defense counsels for up to thirty days (this period could be extended to an indefinite period of time provided that certain requirements are met)[xviii].

iii. What do Control Orders entail?

Neither France nor Germany has explicit acts allowing the enacting of control orders. In Germany for instance Preventive Measures are more directed towards a suspected act of terrorism rather than a suspected terrorist. Preventive measures include the Counter- Terrorism Supplement 2007 which facilitates access by the Federal Office for the Protection of the Constitution to airline information about flights booked by suspicious persons and the threshold for disclosure of information orders is lowered; this in addition to the enforcement of other acts such as The Act on Joint Databases, The Aviation Security Act, Transmission of passenger name records (PNR), Fingerprints in German Passports, and the ban of extremist religious associations[xix].

4. The combat of terrorism and the promotion of diplomatic assurances

The 1951 Convention Relating to the Status of Refugees affirms that no refugee lawfully in the country of asylum is to be expelled except “where compelling reasons of national security otherwise require”. However, other international law instruments (International Covenant on Civil and Political Rights ICCPR and UN Convention Against Torture CAT) ban the return of individuals to countries where they might be tortured or face other human rights violations.

In October 2007, the French, German and British Ministers of Interior along with the ministers from Italy, Poland and Spain gathered in the G6 meeting and issued a joint declaration that should “ideally” further promote security to EU citizens. Clause 3 of the joint declaration mainly tackles anti-terrorism measures to be undertaken such as the expulsion of terrorists relying on diplomatic assurances. “Ministers have noted that in some legally regulated cases expulsion has proved an effective tool to protect people from non-nationals who pose a threat to national security… The G6 believes that the mechanism of seeking assurances, on a government-to-government basis, designed to secure this protection, could provide an effective way forward in some cases…

The G6 Governments will initiate and support continued exploration of the expulsion of terrorists and terrorist suspects, seeking assurances through diplomatic understandings, and other policies[xx]”.

Thus, the real problem posed here is that expulsion is directed to terror suspects and not only ascertained terrorists which gives room for innocent people being deported and sent back to countries whose authorities have high records of maltreatment and torture and the chances for deportees to a fair trial are nil; which is not only an inhumane act to do but also against international human rights law. Moreover, expulsions can interfere with the right to family and private life of the individuals removed and their relatives in a manner that also breaches international human rights law.


France:

In 2003, a new law came into force which made it substantially easier to deport individuals who “have committed acts justifying a criminal trial” or whose behavior “threatens public order”. Earlier versions of this law gave police the power to deport foreigners for participating in political demonstrations^[xxi].

Additionally, France modified its Immigration Code in 2004 to allow for expulsions for “incitement to discrimination, hatred or violence against a specific person or group of persons”^[xxii].


In a report submitted by Human Rights Watch to the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights[xxiii], it is stated that almost 71 individuals described as “Islamic Fundamentalists” and 15 of which are described as Imams were forcibly expelled from France in the period between September 2001 and September 2006.

The ground upon which they were expelled is that they were accused of having links to terrorism and extremism. What remains the problem is the lack of foreseeable assurances that these deportees would not face maltreatment and torture when they arrive to the country of return. A case Human Rights watch puts forward is that of Adel Tebourski, a French-Tunisian national whose “acquired French citizenship was stripped in order to expel him to Tunisia in August 2006”.

Moreover, cases of expulsion included individuals who were accused of a fundamental civil liberty which is “speech”.  Human Rights Watch confirms that the involved individuals did make statements that are offensive in nature, yet their speeches did not stimulate a call for violence whose punishment would be an interference with the right of freedom of expression and expulsion.

Germany:

Germany’s Residence Act has been amended to include a provision on “Expulsion”. Expulsion would apply to non-EU citizens who are viewed as terrorist. This provision is one of Germany’s preventive measures to a terroristic threat or a “special threat to the security of Germany^[xxiv].

In a report prepared by Amnesty International to submit to the United Nations[xxv], Amnesty expresses its concern that anti-terrorism measures in Germany are giving rise to human rights violations. It is particularly concerned about the diplomatic assurances Germany keeps seeking to deport terrorist suspects to states where they might face torture, ill-treatment and unfair trial.

For example, Germany did not only seek diplomatic assurances from Algeria but also provided it with a list of Algerians who are suspected to be involved in terrorism related activities. Amnesty International is concerned that handing over such a list might have put the individuals at increased risk of grave human rights violations in case of return.

Moreover, Germany sought similar assurances (this time “oral” assurances) from the Tunisian government regarding two Tunisian nationals suspected of having links to organizations involved in terrorism. The oral assurances were considered sufficient by Germany that the two Tunisians shall not be exposed to torture and other ill-treatment although in at least one of these cases the Federal Office for Migration and Refugees had earlier decided that the individual should not be deported to Tunisia because of a real risk of being subjected to torture or other ill-treatment. 

5. Anti-terrorism measures and their impact on asylum laws and regulations

After the September 11^th attacks on the US, the governments of France and Germany started taking more restrictive measures on granting asylum seekers refugee status particularly those from Muslim backgrounds.

France:

In 2003, when Nicholas Sarkozy was the French Minister of Interior, a law that controls immigration and the stay of non-French in France was adopted, this law led to complicating asylum seeking and facilitated (for the French government) the process of expelling asylum seekers.
After some youth riots took place in November 2005, immigration laws were further tightened. There is argument over the reason for such riots, where academics and analysts say it is due to socio-economic factors, the French right-wing government and politicians linked the violence that took place to Islam and immigration^[xxvi].

In September 2007, another bill backed by Presented Sarkozy was presented to parliament. The bill would authorize DNA testing for immigrants and require applicants to pass language examinations and prove they can support themselves (meet a minimum income level)[xxvii]. The bill was adopted by the parliament in October 2007; and now the law tightens the rules on family reunification and creates an in-country appeal for failed asylum seekers detained at the border. 

It is worth noting that the bill was criticized by human rights activists and French MPs as “offensive, inhumane and morally abhorrent”. The French Constitutional Court did not challenge the amendment allowing for DNA testing; however, it did warn against “systematic” use of DNA tests. Furthermore, the court did not find voluntary DNA testing limited to establishing a direct link with the mother to be “unconstitutional”. Lastly, parallel to the passing of the new immigration law, it was aimed by the Ministry of Immigration in France to impose a quota of 25,000 expulsions by the end of 2007[xxviii].


Germany:

Migration Policy Group announced in July 2008[xxix], that Germany continues to encourage the European States to offer asylum to certain groups of Iraqis referring to religious and ethnic minorities but clearly meaning offering protection to Christian Iraqis only.

On a different note, Amnesty International[xxx]affirms that extradition of refugees in Germany is not often, yet numbers of refugee detainees to be extradited has increased in the past two years. Amnesty also states that the main group being affected are the Turkish nationals.



6. How are civil liberties and personal rights being affected by the newasylum and terrorism laws?

i. Freedom of expression/ possession of terrorist materials

France:

In June 2008, the French Minister of Interior announced that internet sites containing content related to terrorism and racist hatred as well as child pornography shall be blocked[xxxi]. Not elaborating on the level at which content would be viewed as related to terrorism leaves the door open to arrests/detentions and other measures to be taken by the government under the notion of preventing terrorism.


Germany:

In Human Rights Watch 2008 World Report, it is stated that the German government is in the process of proposing an offense “instructions for an act of violence”. The offense would apply to anyone distributing instructions over the internet on building bombs –for use in an attack. The offense goes further to apply to anyone who would download such instructions, which triggered opponents to the offense saying that criminalizing internet use infringes privacy rights^[xxxii].

ii. Access to data and interference with personal privacy

France:

Data conservation and retention policies in France request that technical intermediaries for internet access to act as “state agents”, also the authority of the French Data Protection Authority powers has been limited to the control of government administration. Moreover, laws in France give police access to personal data without prior legal authorization.

It is also argued that provisions designed to fight terrorism have been extended to fight migration as well, as in France there are provisions for the monitoring of passenger name records of people traveling by sea between France and North Africa, which specifically target non European immigrants and foreign residents[xxxiii].


Germany:

Where terrorism danger is foreseen in Germany, a judge’s approval to government agencies to access personal data and conducts of lives will be given. Laptops, PDAs (Personal Digital Assistants) and mobile phones are amongst the information technical systems that shall be searched.

The German Constitutional Court’s ruling on the 27^th of February 2008, also gives strict exceptions for breaking one’s basic right of confidentiality and privacy.

EDRI^[xxxiv]states that these exceptions shall only occur when “there are "factual indications for a concrete danger" in a specific case for the life, body and freedom of persons or for the foundations of the state or the existence of humans... They do not, however, need a sufficient probability that the danger will materialize in the near future”.

The ruling further states “if these rare conditions are met, secret online searches may only be used if there are steps taken to protect the core area of the private conduct of life, which includes communication and information about inner feelings or deep relationships. These protections have to include technical measures that aim at avoiding the collection of data from this core area... If there are concrete indications in the specific case that a certain measure for gathering data will touch the core area of the conduct of private life, it has to remain principally undone." If data from this core area is accidentally collected, it must be deleted immediately and cannot be used or forwarded in any case”.

It is also reported that this ruling has attained mixed reactions, where some opposition parties and civil rights organizations have welcomed the ruling and its tight restrictions against government agencies to practice their searches; others and mostly bloggers have raised their concerns about the exception clauses and the extent to which they shall be stretched by the government in future legislation and practice.

7. Impact on Muslim communities in France and Germany
 
France:

In the White Paper on Domestic Security against Terrorism, by Dominique de Villepin, former Prime Minister of France, he is quoted “We must avoid the trap of a ‘clash of civilizations’ that has been set by global Islamist-inspired terrorism and we must refuse the conflation of Islam and terrorism that this movement seeks to provoke[xxxv]”.

However, in real life sources argue that since the September 11^th attacks on the US in 2001, and Muslims (especially the young) have been under great police scrutiny. It is also argued that young Muslims are usually harassed in identity checks particularly in cities which have high levels of crime; unfortunately, “police admit to using ethnicity and age as criteria for evaluation during security interventions on the ground”[xxxvi].

Muslims leaders and representatives as well as working Muslims are under surveillance and suspicion. Background checks on Muslim employees were/are conducted to ensure that they are not members of any terrorist group; it is even stated that some companies were asked to dismiss groups of Muslim workers.


As always, France’s policies for integration could be more proscribed as policies for assimilation. This is very clear in Sarkozy’s views on Islam and immigrants in France. Quoting from euro-islam.info[xxxvii],Sarkozy -when questioned by prime-time news- “made it clear Islam is at the centre of the debate: immigrants will have to learn French and “learn to respect the country.”

For Sarkozy, this means “accepting French laws, even if they don’t understand them,” because “it is up for them to adapt, not for France.” In barely- concealed references to the Muslim problem, Sarkozy argued forcefully that immigrants must accept the publication of religious cartoons in newspapers; women must provide uncovered photographs for identity cards, and they must accept to be treated by male doctors”.

Germany:

In April 2002, Germany’s federal states’ criminal investigation department collected 6 million personal records, taking out 20,000 that were considered “potential suspects”. The German system of religious profiling of foreign nationals from Islamic states is said to have based its profiling on the following: to be of –presumed- Islamic religious affiliation, aged between 18 and 24, and not to have previously come to the notice of the criminal investigations department^[xxxviii].

Moreover, Amnesty International also highlights human rights violations Muslims in Germany face by German organizations on a regular basis[xxxix].

Sarah Sherif Abdelaziz is an Anglo-Egyptian writer and researcher who holds a Master of Letters in Islamic Jerusalem Studies, with distinction first class honors, from Almaktoum Institute for Arabic and Islamic Studies in Dundee, University of Aberdeen, United Kingdom. Abdelaziz also earned a Bachelor's degree in Political Science from the Faculty of Economics and Political Science English Section, Cairo University. She can be reached via euro_muslims@iolteam.com.