10th International Judicial Conference in Strasbourg from 23 to 24 May 

Balancing Necessity and Human Rights in Response to Terrorism

By Erwin Felzmann
President of the Supreme Court of Austria
(Original text in English)

Although, in the past, there have been terrorist attacks time and again, also in Austria, our country is not a primary target for major-scale terror attacks, according to current assessments of the situation. While an attack against Austria and its inhabitants cannot be ruled out completely, it was possible, though, in the past years to classify such attacks as being unlikely. However, the attacks in the USA, i.e. the events of September 11, 2001 in New York and Washington, cast a completely different light on the situation. As a result, a lively public debate on issues regarding national security and the reaction of the Government to certain menacing scenarios also ensued in Austria. After all, the events demonstrated that the conventional protective mechanisms for the civilian population – as they have developed over the centuries - are no longer sufficient. This is why new forms of reaction are needed that are implemented with great determination. Since modern technology - and even weapons of mass destruction - have become available and can be applied, all forms of terrorism have taken on completely new dimensions.

As an immediate reaction to this development, more stringent measures were introduced against the so-called "free riders", i.e. opportunists who act in the wake of the original incident, in order to prevent any intimidation of the general public. As early as October 2001, two offences in the Austrian Criminal Law Code were modified, in order to counteract any menace to and intimidation of the general public by the so-called free riders of terrorist attacks. The objective was to punish more severely any disturbance of public life of a serious nature or longer duration, such as a panic-like behaviour of large groups of persons, or any disruption of the air traffic of a longer duration, as well as any serious damage to business life, caused by the conduct of the groups of the population that are exposed to such menaces, for example considerable financial burdens for the affected companies, or particulary serious consequences of those offences, such as death or serious bodily injuries suffered by a major number of persons, or the distress of many persons. This was achieved by amending § 275 (disturbing the peace by threatening the commission of a crime endangering the public) and § 276 (dissemination of false, disquieting rumours) of the Austrian Criminal Law Code by adding two additional qualifications in each case, subjecting them to more severe punishments of up to five years.

Rapidly expanding migration movements are the immediate effect of terrorist acts committed by states and regimes, especially in the Middle East. For several years, they have proved to be highly adverse for Austria. The better living conditions, which migrants expect to find in the countries of Europe, induce numerous persons to try their luck in what they believe to be the "Golden West". In their endeavours, they often become the victims of unscrupulous profiteers, who take all of their possessions and then - perhaps – even abandon them at the decisive moment. As a result, Austria had to decide not only to be more vigilant in its border controls (at present the borders to the north, east and south are largely external borders of the EU!), but also to introduce more severe penal sanctions against trafficking of persons. The penal sanctions against illegal immigration networks, which had existed before, were expanded and integrated into the Austrian Aliens' Act. In severe cases of trafficking (e.g. resulting in the death of a person), the range of punishments was increased to up to ten years of imprisonment. A separate offence was defined for the exploitation of persons smuggled into the country or staying in Austria unlawfully. All other forms of assisting against a remuneration in the unlawful stay of a person in Austria may also be punished by a money fine, since they constitute administrative offences. These new provisions have been in force since 1 July 2000.

As far as Islamic extremism is concerned, Austria also felt the impact of the terror attacks on the US embassies in Nairobi/Kenya and Dar es Salaam/Tanzania in August 1998, as well as by the myth created around Osama bin Laden in the Islamic world. However, the situation was not very dangerous in Austria in recent years, since most of the approximately 300,000 Muslims living in this country are followers of a moderate form of Islam and respect Austrian laws. This can certainly also be explained by the fact that Islam has always been recognized in Austria by the Government as a religious community. In contrast to other European countries, one therefore finds only a few extremists in our country who are followers of an Islamic ideology. However, this group of persons, of which some have good national and international connections, behaves in a most inconspicuous manner and does give the impression of not wishing to use violence in the pursuit of its goals. After the September 11 events, no activities were identified in Austria that related to them. However, it cannot be precluded that – in the past – Austria served or – in the future – will serve as a shelter for moles, or that the materials and means for terror attacks are channeled through Austria in the framework of financial transactions.

However, the incidents of the past year, in particular, demonstrate the considerable global menace by Islamic terror organizations, as a result of which a new legislative initiative has been launched in Austria to fight terrorism. At present, a long and detailed bill is being circulated in order to collect qualified comments, which will especially implement the international requirements in the field of combating terrorism and organized crime, as well as other issues. For the benefit of expanding the possibilities for punishing terrorism and organized crime, the EU Council Framework Decision on combating terrorism, the Joint Action of the EU against organised crime, the International Convention of the UN for the Suppression of the Financing of Terrorism, UN Security Council Resolution 1373, as well as the UN Convention against Transnational Organized Crime, in particular, will be transposed. This legislative initiative is characterized by the following principles:

    stipulating a new offence "terrorist group" (§ 278 b of the Austrian Criminal Law Code), to be punished by imprisonment of up to 15 years;

    stipulating a new offence "financing of terrorism" (§ 278 d of the Austrian Criminal Law Code), to be punished by imprisonment of up to 5 years;

    stipulating a collective qualification for terrorist offences (§ 278 c of the Austrian Criminal Law Code), as a result of which the punishment is to be increased by one half for a series of general offences that is committed with a terrorist intention;

    expanding the concept of gangs to being classified as "organized criminal group" (§ 278 of the Austrian Criminal law Code), in keeping with the requirements of the EU Joint Action and the UN Convention against Transnational Organized Crime.

Regarding criminal procedure, the provisions on special investigative measures for the optical and acoustic surveillance of persons, using technical means, and IT-supported data matching ("acoustic and optical surveillance" as well as "electronic data matching"), which had been introduced only for a limited period of time and were in effect only up to 31 December 2001, have become fixed elements of the law for an indefinite period of time. These provisions were drafted with great care and in a very balanced form, after a broad process of developing the objectives, both inside and outside of Parliament, paying special attention to human rights and the rights of individual persons. In addition, a special mechanism ensuring legal protection was introduced, which is being recognized also on an international level as an exemplary Austrian achievement for the protection of human rights. In fact, the Federal Minister of Justice is required to appoint a person responsible for legal protection (Legal Protection Commissioner) in order to ensure the special legal protection required for the implementation of the provisions on special surveillance measures. This person must have special knowledge and experience in the field of basic rights and fundamental freedoms and must have worked in a profession, for a minimum of five years, that requires the completion of legal studies for its exercise, and where the exercise of that profession allowed that person to collect experience in criminal and criminal procedural law. This Legal Protection Commissioner is independent in the exercise of his function and not bound by any instructions. He is also subject to official secrecy. The Legal Protection Commissioner is responsible for monitoring and reviewing certain rules that are defined in great detail in the relevant law, as well as their applications by the courts. As a result, the courts, the public prosecutors and all security agencies have to grant the Legal Protection Commissioner access to their files at any time so that he can exercise his duties, and they must also afford him an opportunity to actively monitor the performance of the special investigative measures, to grant him access to the premises at any time, and to help him review the results of the surveillance operations.

The new bill will expand the regulations under criminal procedural law to include large-scale acoustic and optical surveillance measures, as well as electronic data matching operations, which will be applicable to the new offence under § 278b of the Austrian Criminal Law Code (terrorist groups).

Moreover, issues concerning the processing of telephone data and identifying locations, which are currently used practices, will be put on a statutory basis. In this connection, the control competences of the Legal Protection Commissioner will be expanded further.

The provisions for lifting the bank secret will be adapted to the requirements of the Convention on Legal Assistance in Criminal Cases among Member States of the European Union. This will make it easier to identify accounts that are used to finance criminal and terrorist activities, as well as to obtain information on account movements during a certain (past or imminent) period of time.

All legislative measures that have been implemented or are now in the planning process are, however, in strict compliance with the European Human Rights' Convention, which is on the same level as the constitution in Austria. Every judge is therefore required to interpret any ordinary statutory provision in conformity with the constitution. These substantive and formal provisions are being applied exclusively by ordinary courts, since there are neither special tribunals nor courts martial or any other extraordinary courts in Austria that could be seized with such offences. There is general consensus in Austria that the goal is to act with determination and efficiency against terrorist organizations and activities, but that human rights must always be respected. This is not only ensured by the Supreme Court, which is the court of highest instance in Austria's legal system, but also by the Constitutional Court – whenever matters relate to security agencies – as well as the European Court of Human Rights in Strasbourg, in the last analysis.