In order to combat international terrorism, the EU has mainly used repressive measures under criminal law, which have long been subject to a process of “vertical” harmonisation. However, all this severely limits the judicial response.
To address past national terrorist threats, some Member States (e.g. Italy, Germany and Spain in relation to BR, RAF and ETA) have adopted a number of complementary, but not “alternative”, measures that allow judges not only to punish crimes committed, but also to prevent those that still need to be committed. In this way, they induced the captured terrorists to cooperate with the authorities (reward measures, such as: mitigating circumstances or other forms of reduction of sanctions, non-punishability, prison benefits, etc.), taking advantage of the fact that many extremists were only “flankers” of the terrorist association, therefore still sensitive to the loss of freedom, as well as widely recoverable. These measures have strengthened the judicial response to the phenomenon of internal terrorism, proving so effective as to be maintained over time, even after the cessation of the “terrorist emergency” and extended to other forms of crime.
It is in this context that the universities involved in FIGHTER will study the possibility of using the reward measures against international terrorism.
The project aims to address the above issues by achieving the following objectives.
To clarify and systematize the state of the art in the field of reward measures against international terrorism through a European and comparative study from the legislative, practical, historical and criminological point of view. This first objective is an indispensable step towards understanding whether, how and why individual Member States have adopted any “reward discipline”.
To create one or more European models of reward measures for terrorists working with the authorities. Consequently, a comparative analysis to identify existing common models will be a starting point, while the focus on the legal and cultural feasibility of implementing the model(s) through harmonisation will be constantly monitored. The analysis will take into account the limits set by the general principles of the Union, its competences and possible legal bases, and the constitutional principles of the MS, so as to ensure compatibility and feasibility, thus avoiding possible future friction between the Taricco Case Courts: Court of Justice of the European Communities, Grand Chamber, 8 September 2015, C-105/14 Taricco, and C.C.C. Court, 26 January 2017, no. 24). Cooperation with important members of the judiciary in each unit – as well as the organisation of focus groups in each selected Member State – will ensure a focus on the practical issues that the judicial authority already has to address due to the lack of harmonisation, and on those that may result from the harmonisation itself, thus allowing the project to improve judicial cooperation in cross-border cases and to anticipate any future issues.
To analyse the actual scope of application of Article 16 of Directive 2017/541/EU and to assess the possibilities of exploiting it in order to implement one or more of a model even before harmonisation. Guidelines for individual Member States will then be produced. The analysis will therefore assess the residual autonomy of individual Member States in introducing reward measures not expressly provided for in the article. 16 in the light of the implementation of these models.