Letter from Brussels

Curbing Civil Rights
Julie Robert

Everyone remembers what s/he was doing precisely when the news broke of events in New York on 11 September 2001 .If anyone cares to know, I was ironing in my parents' living room. But that's not my point. My point is that from that day, a lot of things have changed for a lot of people. I've heard many people say: 'things will never be the same after what happened'. And they can't imagine how true that is.

Since the attacks on the towers, the war against terrorism has become the biggest priority for the whole international community. This war is being used as a pretext in most countries to justify penal reforms. And these reforms, with the passing of time, are becoming more and more draconian. It has happened, and it is still happening in Belgium too. And it is posing a lot of questions. The States are implementing exceptional legislations to judge the so-called terrorists. Suspects are deprived of the right to a proper defence, the incriminating evidences remain secret, sentences are pronounced by special courts whose functioning and composition violate the basic principles of impartiality, the proceedings patently violate the right to a fair trial, etc. We could go on and on with the list of consequences of these proceedings established in the name of the fight against terror. In fact, the States take advantage of the threat of terrorism to adopt a large legal arsenal allowing them to repress all forms of political dissent. And as the definition of 'terrorism' is quite vague, it allows the States to criminalise any form of opposition and social movements. All this only increases their social control over their citizens.

Before 2001, unlike six other countries of the European Union (Spain, France, Germany, United Kingdom, Ireland and Portugal), Belgium did not have any anti-terror law. So, on 19th December 2003, the government incorporated the framework decision of the European Union in its own legislation. This new act established a new incrimination specifying the terrorist acts and the terrorist organisations. This new law specified a membership offence. One can be prosecuted merely because one is member, or considered as connected to an organisation labelled as terrorist even if one has not committed any act of terror. But more important is that this new law (as all the different anti-terror laws adopted in various countries) generalises the exceptional proceedings at all stages of the criminal procedure. And this generalisation creates a permanent exceptional state where the rule, i.e. the guarantee of constitutional rights, is continuously violated. The coming into effect of this new law gives a political nature to this new incrimination. Not only is a violent action, an attack, the destruction of a building an act of terror, but even an intention (that is open to subjective interpretation) to harm the political, social, economical structures of the state can be considered to be an act of terror. An infraction is also defined as an act of terror when it aims at compelling the public authority or an international organisation to a certain act, or to compel it to refrain from committing a certain act. Thus the definition of an 'act of terror' has been broadened to encompass any odd act of protest. Moreover, the anti-terror law interferes completely with the criminal justice procedure, allowing exemptions in the form of special investigation provisions at all stages of the procedure: from the inquiry to the judgment. And it also justifies exceptional measures of custody or administrative imprisonment. There are instances of those exceptional measures in every country that has implemented this kind of law. In Spain, a person charged under the anti-terror law cannot choose his/her lawyer. In Germany, specific rules reduce the rights of the defence. And in Belgium, the government has adopted two acts on 'particular methods of investigations'. The first one, adopted in 2003 has been partially cancelled because of the unconstitutional nature of some of the measures contained in it. In 2005, a second act was adopted to in lieu of the earlier one. It includes most of the draconian measures of the previous one, but to make them acceptable, the act was presented as a panacea in the war against terrorism. The act interferes with the basic rights of citizens such as a right to a private life, the right to a fair trial, etc. Another characteristic feature of the act is that the result of private investigations are kept in confidential dossiers and not even the defence has the right to access the files, which clearly reduces the defence's scope to contradict the public prosecutor. And last but not the least there are no penal provisions against a negligent police officer who does not follow the laid down procedures for conducting investigations. In January this year, our Minister of the Interior has proposed a draft to amend the existing law. As per the proposed amendment, the 'indirect' incitement to terrorism will be considered as an offence. This draft proposes a new article in the Penal Code, which makes 'indirect' provocation punishable. That is to say, any public communication which advocates, directly or not, the commission of terrorist offence or there is a probability that the act 'may be committed' is an offence that is chargeable even if no violent act is committed.

Since the adoption of its first anti-terror law, Belgium is working on the jurisprudence based on these two laws. As the acts in themselves do not include 'indirect' provocations etc. the Belgian authorities have to create a jurisprudence that suits them. Between January 2007 and December 2011, the public prosecutor's office had recorded 673 persons involved in terrorism under this specific law. Later, only 11 of them were found guilty, but this figure can only increase as the interpretation of the law gets wider and wider. For the moment, the low rate of convictions only shows the ulterior motives of the law.

Talking about jurisprudence, one has to mention one specific case that lasted for more than ten years and had its epilogue in 2009. On 28th February 2006, after several years of investigations, a court in Bruges sentenced seven persons associated with the DHKP-C, a Turkish Communist revolutionary organiszation, from four to six years of imprisonment. One of them, Bahar Kimyongiir was sentenced under the anti-terror law to four years of imprisonment for being a member of the organisation. He was condemned for having given out flyers and interviews on a statement by the DHKP-C. This judgment followed the American and European political initiatives which listed the organisation on their terrorist organisations list, in January 2007, an appeal court confirmed the previous sentence. But it also went further to introduce notions of 'indirect incitement' or 'glorification' of terrorism by saying that the fact of translating and distributing the statement of the said organisation amounted to a support for that organisation. Then followed two more trials and appearances at the Supreme Court. Finally, Bahar Kimyongur was acquitted along with the five co-accused. The court stated that the mere diffusion of a statement of the DHKP-C, even if considered as a terrorist organisation, could not be regarded as a terrorist action.

The conclusion of this long trial was encouraging. The lawyers of the Ligue des Droits de I'Homme, those of the Syndicat des Avocats pour la Democratie and the Belgian people welcomed the verdict with optimism. But that was without taking into consideration the fierceness and the draconian will of the authorities. A second case totally based on Belgian anti-terror law has been going on since 2009, and is far from being closed. The whole story is so absurd and worrying for the future that I think it's really worth mentioning the details.

On 5 June 2009, in Brussels, a series of raids, searches and arrests targeted some members of the Secours Rouge, which is a legal organisation that struggles against repression and for the release of Communist, Anarchist and anti-imperialist prisoners. Following these police actions, four militants were charged with 'participation in terrorist activity' on the basis of documents found in Italy. In fact, these arrests show the fuzzy nature of the anti-terror law. The four were charged with a 'terrorist activity' in Italy while the Italian justice had not seen, in the documents presented in the Belgian court, any reason to charge the Belgian militants. Moreover, the Belgian law enforcers were not able to specify any precise 'terrorist activity'. But what did really happen? In February 2007, dozens of communist and anti-fascist militants were arrested in Italy as a part of a vast crackdown on a secret organisation named PCPM. In the middle of the thousands of documents found during the crackdown were some pictures of the four Belgian militants living in Brussels. The Belgian authorities were immediately and secretly informed. During the next year and a half, the Belgian police spied on the four militants and their families by installing concealed cameras in front of their homes, interception of phones calls and e-mails, shadowing, checking of all their trips to foreign countries by scanning the lists of the airline and railway companies, review of old communications going back to 2004, etc. When all the secret investigations gave no results, the authorities decided to go for 'no matter what approach' and launched raids. On 5 June 2008, the anti-terror commandos broke into the homes of the four militants and arrested them. Besides the four, various persons associated with them (including one minor) were threatened with weapons. The house of another member of Secours Rouge was also raided, and she was taken to the police station despite the fact that she was not charged. In two days, seven persons were arrested (including six members of Secours Rouge) and six of them were put behind bars. All of them are questioned by the police, and they realised that the main interest of the police was to probe the activities of Secours Rouge. As it is almost always the case, the media overplayed the information given by the police, creating a climate of fear among the population in Brussels. They talked about 'explosives' found in the house of one of the accused. Those were actually fireworks used for celebrating a wedding. They talked about the 'rebirth of the CCC (a secret Communist organisation active in the eighties which did attack symbols of the capitalist system) but on 11 June 2008, after the media had to retract and tell the truth, the authorities decided to release three of the four prisoners. The fourth one was released a month later. A long judicial investigation started thereafter. The release was subject to stringent conditions. They were debarred from meeting each other and they had to make a monthly appearance at the police station. However, these conditions were lifted in March 2010. During all this time, the authorities worked and analysed all the documents seized, all the phone calls recorded to decide if there was 'enough' material to launch a trial.

At that point, almost all the Italians prosecuted were in prison. In June 2009, most of them had been found guilty of 'membership of a terrorist organization'. The sentences ranged from three years and a half to fifteen years of prison. Their lawyers immediately appealed against this judgment and on 24th February 2012 there was a favourable turn of events. After all long procedure of appeals from the defence and the prosecutor, the Court of Appeal declared that it could not legally label the PCPM as a terrorist organisation. That seemed to be an encouraging decision for the four accused Belgians. It would now be difficult for the justice system to accuse the four members of Secours Rouge of participating in terrorist activities (of the PCPM). The Italian Court of Appeal sent the judgment to the Belgian authorities, which took their time to translate and analyse the Italian decision. Basing its judgment on that document, the court decided to dismiss the charge of terrorism but charged all the four with 'attempt to forgery'. That was a big victory for the defence. Even if there was going to be a trial, it would have nothing to do with any anti-terror law. But the public prosecutor, who is eager to use this case to widen the scope of the anti-terror law, filed an appeal against the judgement. The decision came as a bombshell on 28 February of this year. The court finally decided to send the four members of the Secours Rouge for trial under both the charges of 'participating in a terrorist activity' and 'attempt to forgery'.

Since the beginning of the investigation, all the charges against the four accused have been demolished, and the case in Italy on which the investigation in Belgium was based has fallen flat. In spite of all this, the authorities in Belgium have dug their heels and want to pursue the case at any cost. Why this obstinacy? That is because these militants trouble them and because the authorities do not want to lose face. The aim of the investigations and the judicial process was to charge the four accused under the anti-terror law and so the authorities have to pursue the case to its pre-meditated end.

As mentioned earlier, out of the 673 persons accused of terrorism between 2007 and 2011, only 11 have been condemned. This figure shows clearly that the Belgium's legal framework to brand activists as terrorists is seriously flawed. Instead of re-examining the existing anti-terror law and all the legal acts adopted since 2003 the Parliament just adopted a new amendment to the Penal Code. And yesterday, the authorities adopted an act to put into effect a new framework decision of the European Union. Now, any person who gets in, or tries to get in to a nuclear site will be regarded as a 'terrorist'. Funny as ever, our minister of Justice said that the new law is aimed at the Osama Bin Ladens and is not targeted at the anti-nuclear activists!

Frontier
Vol. 45, No. 42, Apr 28- -May 4, 2013

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