The Ararteko’s participation to the counter-terrorism report by the European Union Agency for Fundamental Rights

As previously announced, in 2021 the European Union Agency for Fundamental Rights (FRA) published a report that, with input from the Ararteko and from other individuals and entities, examined the impact on people’s rights of the EU Directive on combating terrorism. The FRA has recently published the report summary in the official languages of the EU, thus making the report accessible to the general public. This is an opportunity for the Ararteko to share a reflection on its content.

The report, entitled “Directive (EU) 2017/541 on combating terrorism – Impact on fundamental rights and freedoms” (see summary in English), has been prepared by the Agency at the request of the European Commission, to examine the impact that the application of the provisions of this European directive is having on people’s rights. In general, the report stresses the need for greater legal clarity, practical guidance and stronger safeguards when countering terrorism, as the measures can entail, directly or indirectly, serious limitations to fundamental rights and freedoms.

The Ararteko’s participation in the report was the result of the direct request for cooperation from the European Agency for Fundamental Rights. The Ararteko was thus one of the 107 individuals and institutions interviewed with extensive experience in the field of combating terrorism, including representatives of the judiciary, public prosecution and the justice system in general, academia, along with NGOs and oversight institutions such as the Ararteko. The report focused on seven EU Member States in order to reflect the diversity of experiences with terrorism and the application of counter-terrorism legislation, and in the interest of geographical balance. 

The Agency issues six opinions in the report with the aim of contributing to EU counter-terrorism measures fully respecting fundamental rights throughout the EU. In keeping with the Ararteko’s contribution as part of its cooperation with the Agency, the following should be highlighted:

  • In its first point, the Agency indicates that the criminalisation of preparatory offences – such as public incitement to commit a terrorist crime (which would include glorification and humiliation of the victims in the Spanish system) and travelling for terrorist purposes – must not impact or have an intimidating effect on the legitimate exercising of individual rights, such as freedom of expression (Opinion 1).
  • Furthermore, the Agency calls on the European Commission to send guidance to the Member States so that the interpretation and application of terrorism and terrorism-related offences is fully in line with the Directive, and to thus avoid an expansive interpretation by the authorities (Opinion 5).
  • Finally, the Agency stresses that, in order to avoid a disproportionate impact on people’s rights, the use of administrative measures by national authorities against people suspected of taking part in terrorist activities must be subject to clear rules and conditions for their application (Opinion 6).