The Luxembourg Justice system, upstream and downstream.

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The Luxembourg Justice system, upstream and downstream.

Or: The tribulations of the Luxembourg Government in the realm of terrorism.

On September 24, 2014, resolution 2178 of the UN Security Council was adopted unanimously. It was one of the 6 highest meetings since the United Nations was created 70 years ago. The resolution defines a global strategy in the fight against terrorism, including against foreign terrorist fighters.

Excerpt from the wording of the resolution:

"In resolution 2178 (2014), adopted unanimously by its 15 members, the Council expressed its desire to expand to foreign terrorist fighters, especially those who are recruited by the Islamic State of Iraq and the Levant (EIIL ) and the Front el-Nosra, sanctions currently affecting individuals and entities covered by the Committee against Al Qaeda.

Acting under Chapter VII of the UN Charter, it expressed "strong commitment to consider" the inclusion on this list of "groups, undertakings and entities associated with Al-Qaida to finance, arm, organize and recruit for or supporting acts or activities, including using the new technologies of information and communication such as the Internet and social media. "

Luxembourg is with the United States co-author of the resolution 2178

As a Member of the United Nations Security Council, Luxembourg has joined the United States to be co-author of the resolution. Even within the confines of this "Machin", the United Nations according to de Gaulle, it is a small feat for Luxembourg. In his speech of 24 September 2014 before the Council, Luxembourg’s Prime Minister Xavier Bettel said in particular:

"To counter this threat, there is no magic formula. As we are all concerned, it is clear that we must act together. The response of the international community and the Security Council must live up to this challenge. In this regard, I welcome the resolution 2178 (2014) that we have just adopted unanimously at the US initiative. Luxembourg was honored to be a co-sponsor. »

Mr. Bettel then filtered the essence of the decisions taken to counter the phenomenon of foreign terrorist fighters:

• intensify efforts to prevent radicalization that can lead to terrorism, and to fight against violent extremism;

• prevent those who want to go fight with terrorist groups to travel to conflict zones;

• intensify efforts to dry up the sources of financing for foreign terrorist fighters.

Regarding the financing of terrorism, Mr Bettel added "that as an international financial center, Luxembourg is aware of its special responsibilities in this area and has developed a comprehensive and consistent set of legislative measures and regulations in the fight against money laundering and terrorist financing, and paying particular attention to their implementation. »

Quite logically, in pursuit of this strong commitment, the government filed January 7, 2015, the draft 6761 law "On implementation of certain provisions of resolution 2178 (2014) of the United Nations Security Council amending the Criminal Code and the Code of Criminal Procedure.” That is exactly the same resolution that Luxembourg inspired as a co-author, and is impressed on the whole world.

Discomfort in the Luxembourg judiciary?

First one would have thought that the Luxembourg government, before launching into a co-authorship of a resolution of the Security Council, with the purpose to influence how justice is administered globally, would have taken care to consult its wisest magistrates. If it did so, then apparently their advice was ignored.

What offends the black robes is the perception that the rights of citizens would be better protected by the judicial services than by the secret services, reports PaperJam. There seems to lie the fundamental conflict that magistrates bring up: how to conduct preventive measures without the intelligence services?

It is this preventive aspect that bothers the defenders of traditional criminal law. They perceive possible threats "to essential values ​​such as the presumption of innocence, the requirement of sufficient evidence (and therefore at least preparatory acts  to an offense) the right to a fair trial, public hearings , transparency and legality of evidence not to mention the motivation of decisions and of any right of appeal. »

It is wise to raise the alarm when approaching a slippery slope.  In this case we advance among others to the concept of “crime of thought or intent”. With this advance upstream of the criminal act itself, a mere suspicion would trigger the implementation of a whole new arsenal of remedies that go beyond present criminal methods and values?

Terrorism is not just a criminal case

Terrorism lies at the intersection of the act of war, the war crime, and the criminal case. Neither Resolution 2178 nor the proposed Bill extend these aspects. Magistrates in their criticisms only graze them with their comments on the use of secret services. All failed to further discussions on the status of "enemy combatants" or “foreign terrorist fighters”. Comments are confined to considerations that some would summarize as anti- SREL, the Luxembourg secret service.

Yet aspects of war should have been considered, as the United States, co-author of the resolution, have Guantanamo as a skeleton in their closet. It is an element of controversy. But it has also been adopted as a solution to a dilemma that many seem to disapprove. Official Luxembourg is among the critics of Guantanamo. President Obama is too. It is a pity that this discussion did not take place, as it would have highlighted the legitimate conflicts on both sides regarding the detention of a terrorist. Their threat to society makes their incarceration a necessity, yet raises all the questions around Guantanamo.

There are first those who say that terrorism is a form of warfare. ISIS and other terrorist groups are saying the same. They are actually declaring war. It is hard to imagine that these terrorists, as a corollary of their declarations of war, would also apply the Geneva Conventions on war to anyone falling into their hands, civilian or military. They murder them brutally.

Guantanamo has been an initiative to more or less maintain a semblance of adherence to these conventions and rules. The argument draws on the sources of the Geneva Convention, on non-state actors in armed conflict who, defined in this way, "do not enjoy the rights and privileges of a regular fighter; the non-state actor is a common criminal, and it is permissible to take him out by summary convictions and repressive measures. A fighter can only see his regular status recognized if he carries arms openly and if he wears distinctive signs. "(Julie Saada, and others" non-state actors in armed conflicts "Agence Universitaire de la Francophonie, 2010).

The resolution does not clarify the foreign terrorist fighter’s status. Whether war is declared or not has certainly legal and political implications. In the end, facing a threat calls for a legitimate self-defense. Which means answering war with war. That being, the overarching requirement is then not to violate the principles of the military art. In this case, certainly not the one that requires the constant search for information. But in this war the enemy melts into the population which makes it difficult to detect him before he commits an act of war. The search for intelligence has necessarily to target events leading up to the act of war, well before its planned execution. From this perspective, the prevention of terrorism is less a police operation happening mostly after the fact, than a clandestine intelligence operation. It is a mistaken use of assets to have Police and Secret Service engaged at the same level at the same time with similar assets on a same operation.

The discussion to define the acceptable limits of the resolution was unfortunately truncated. To extract a law from resolution 2178 that both has preventive applications and gives reassurances to the guardians of the principles, it needs a narrow application.

Lacking deep consensus, the law should be very specific

This law reverses the burden of proof , which has the magistrates concerned. The suspect has to provide proof of innocence. To mitigate potential abuses, the law should have a narrow application.

The need to be specific requires a public list, published and maintained by the government or an international organization such as the United Nations, describing the possible offenses and a public list of designated terrorist organizations such as ISIS, Hamas, Al Qaeda, Boko Haram and Hezbollah. Thus, the mere fact of developing those activities and joining such organizations should be publicly well described crimes. The  clearly announced intention to develop activities supporting and joining these terrorist organizations are evidence "prima facie" to establish that a person is a terrorist. Unless the defendant presents evidence to clear himself. This obligation to prove his innocence is the important fact: the burden of proof has shifted to the suspect.

It is clear that the resolution and the new legislation that results from it were born out of fear, and that we can expound on public acceptance to trade freedoms for more security. We have already traded freedom for more security, as for instance the intrusive checks for airport security, which affects 100% of us. This new law will actually affects only 0.01% of the population, the terrorists and terrorism candidates. Ultimately, the law opposes the right of an individual to belong to a terrorist organization against the right to life of the rest of us, we the 99.9% of the population.

The Luxembourg courts will be hell for the “faux-jihad”

It would have been interesting to see the Luxembourg magistrates focus also on a real homegrown current scandal, which concerns them directly, and affects the new law dramatically, far beyond the other theoretical but legitimate concerns. I'm talking about the incredible disruptions in the Luxembourg Justice system that fails to deliver justice within a reasonable time. Indeed, Luxembourg justice is often delayed, so denied, or worse, dismissed through lack of resources, expertise and political will.

At the start of the new "judicial year" in the fall of 2011, Attorney General Robert Biever confirmed what all criminals and their victims know: Luxembourg is a judicial Paradise for criminals, a hell for their victims, as Justice does not have the means for its mission. According to the Prosecutor, especially when it comes to financial crime and money laundering (including terrorist financing raised by Mr. Bettel at the UN) a prescribed 1,500 cases have been shelved for lack of means from 1990 to 2011, which is about 75 unpunished financial crimes a year! Luxembourg is also regularly convicted by the European Court of Human Rights for its violations of Article 6-1 of the European Convention on Human Rights on fair trials, including unreasonable delays.

I like to quote the tragicomic case of a stolen cow brought by a farmer from Mertzig / Luxembourg: after 12 years of proceedings, the European Court of Human Rights ruled against Luxembourg for failing to adequately organize its justice, and give the man (and the cow?) his day in court. I don’t even mention the case of the century, actually the case of two centuries, known as the Bommeleeër (the bomber): after 30 years of proceedings, there is still no hope of seeing an end to it. The 22 bombings have not produced enough evidence to close the case, but the top police officers were sacked, though no magistrates, revealing the level of distrust and infighting in the Luxembourg system.

This judicial inefficiency punishes the victims. I myself have a pending case for over 11 years as a complainant, without seeing the end of it. So men and women, victims of crime are left with wasted years through official negligence, laziness or incompetence, a scandal for the country that is the co-author of Resolution 2178, which gives recommendations to the world on how to organize their Justice for the fight against terrorism.

This aspect of the defective organization of the Luxembourg courts, or rather the lack of a mandatory system to cycle through the different stages of the procedure within a reasonable time, is undoubtedly the most powerful argument to ventilate serious reservations about this bill. Because the burden of proof has shifted, the suspect has now to prove his innocence. The Luxembourg legal system, desperately slow in all areas, must absolutely speed up its procedures. For the new anti-terrorism law, where an innocent person could be falsely accused of terrorism, so incarcerated or otherwise legally restricted, the procedural delays create a new class of victims of the unreasonable delays: the falsely accused who cannot produce a proof of innocence to the court in a reasonable time-frame.

Some call the proposed Bill the “Luxembourg Patriot Act”, an implicit criticism of the United States. I would add that other European prime target on American values: Guantanamo. If the Luxembourg anti-terrorism law is applied with the traditional delays described above, the "prima facie" terrorist, who is falsely accused, risks his Guantanamo in Luxembourg for a long, long time. Maybe he will see more than one Attorney General retire, before his own release.