Place: A Coruña, Spain
Date: 5 – 8 september 2007
General Reporter : Prof. Lorenzo Picotti, University of Verona,
Young Penalists’ Reporter : Dr. Ahmed Khalifa, Poitiers (France)
The new forms of very serious crime that have developed
exploiting the opportunities and the contradictions of today’s
« global » society have aroused in recent years the need for more
effective answers than the existing ones, which have proved
inadequate against the organized and often multi-national
dimension of the above-mentioned phenomena. On the one hand,
the development of the economy, of exchanges, of the « free »
circulation of individuals, goods, services and capital beyond the
boundaries of different States has created the basis for a global
market offering new opportunities to the action and proliferation of
expanding crime structures; such structures are able to exploit the
different economical, social, political and juridical conditions of the
various territorial circles with the purpose of broadening and
intensifying any sort of illegal investments and trafficking : from
drugs to weapons, from women and children to migrants and
human organs for transplants etc.; such plans are actually
achievable thanks to the diffusion and modernization of the means
of transport and communication, now available at lower and lower
prices, as is proved by the all-pervading diffusion of the internet.
On the other hand, the striking inequalities emerging from the
direct contact among divergent areas and populations, from the
utmost developed to the poorest, once far away the one from the
other and deeply different in terms of culture, traditions, ideology,
religion, systems of values, collective and individual ways of life, do
create the conditions for harsh comparisons and open conflicts, as
is dramatically proven by the difficulties (if not by the impossibility)
of social integration where mass migration (and sometimes human
trafficking) is taking place, leading to situations of marginalization
and discrimination, even resulting in sheer violence.
As a consequence, new areas are available for the establishment
and action of terrorist organizations, often branched and structured
in a multi-national dimension, which makes the need for new
answers more and more urgent. As a matter of fact, terrorism has
taken different shapes according to different historical periods and
to the places where it made its appearance. It tends to evade a
homogeneous qualification and above all a homogeneous juridical
discipline as it is perceived in different ways and combated through
different preventive and repressive instruments.
However, nowadays it is certainly a matter of the utmost interest
both for the public opinion all over the world and in the initiatives of
governments and of international institutions.
As a matter of fact, on one side, this phenomenon has taken new
and at times brutal characteristics, with the use of more powerful
technological devices capable of producing tragically spectacular
effects (as happened in the case of the terrorist attacks to the Twin
Towers in New York and to the Atocha station in Madrid), while its
perception and force of impact has a worldwide spread, owing to
global communication media and the consequent diffusion of
information and opinions. These different factors give advantage to
the aim, often explicitly pursued by terrorist organizations, of
achieving results beyond the borders of the country where they are
acting or where their target is located.
All this considered, notwithstanding the complex plurality of causes
and opinions that could emerge from a more detailed analysis of
the qualification and evaluation of the acts and deeds that can be
called « very serious offences » and particularly « terrorism », we can
say that terrorism tends to acquire global dimensions, in
accordance with the characteristics and trends of present-day
As far as the targets of this study are concerned, we must point out
that neither serious and organized crime nor terrorism are at
present included, as such, among « strictly » international crimes
that are the object of the multi-national indictment and jurisdiction
system set in the Rome Statute of 1998 establishing the
International Criminal Court.
Anyway, there has certainly been a shift in the approach to the
instruments for the fight against the above-mentioned phenomena
(as far as terrorism is concerned, mainly after the attacks of
September 11 in New York and Washington) aiming at achieving a
closer cooperation among Governments, not only between the
judiciary and the police, but also through a previous parallel
harmonization of the substantive criminal law itself.
This course of action has developed at various levels.
The first level is the global level, characterized by numerous
interventions of the UNO. We must take into special account the
Convention against multi-national organised crime, opened for
signature in Palermo in December 2000, and its additional
Protocols against the trafficking in human beings, particularly
women and children, and against the trafficking in migrants. Such
instruments offer a general framework in which other numerous
Conventions already in force against particular forms of serious
and over-national crime (i.e. drug trafficking, weapons trafficking,
human beings trafficking etc.) may be inserted and partly
integrated. In the matter of terrorism, on the contrary, it is still
difficult to reach agreement on a convention having a general
character owing to the heterogeneous points of view on the
possibility itself of a definition of a common notion from the
perspective of penal law; yet, this has been attained at a regional
level, particularly inside the European Union, that, among other
provisions, issued the framework decision of 2002 defining in
common juridical, penal terms the dimension of the phenomenon
and the basic instruments for combating it.
The same thing happened (dating from the common action of
1998) as far as organized crime was concerned : its definition as
« criminal organisation » represented the reference basis for a large
number of other instruments for intervention against more specific
forms of « serious and multi-national crime » (i.e., the framework
decisions on the European arrest warrant or for the acquisition of
documentary evidence, as well as for the tracing and confiscation
of the proceeds of a crime, against data processing attacks, the
trafficking in human beings, drug trafficking, weapons trafficking
etc.); such crimes may be included (even if sometimes with a
certain extensive straining) in the field of competence outlined in
arts. 29 ff. of the European Union Treaty, by means of which it is
possible to state « minimal norms » concerning the constitutive
elements of crimes and the sanctions, so that a common fight
carried out together by the various member countries of the
European Union might be far more effective than individual actions.
Particular attention must be given to the national level, where any
law actually comes into force, as each State has its own jurisdiction
for the actual implementation of the substantive and procedural
criminal law. From this point of view, assuming the achievements
at a multi-national level, we must carry out a specific analysis of
the matter on the basis of the positive criminal law in force in each
national juridical system.
About the questionnaire
(A) In order to deal suitably with the general profiles of substantive
criminal law, we must give a short outline of the juridical matters in
the context of the phenomena created by globalisation in each
juridical system (A.1), identifying the general setting of regulations
about preparatory acts and participation (A.2), with respect to
which we can say if, and in what measure, there has been a
broadening of the forms of preparation of and participation in
offences in a certain field, such as the field of « very serious crime »
and of « terrorism » (A.3).
(B) We must then single out a general survey above all of the new
normative formulations of the forms of preparation and of
participation, starting from the cases of the criminalization of
preparatory acts (B.1), such as the incitement/provocation not
followed by the commission of the offence, particularly pointing out,
when material acts are involved, the possible separate punishment
for specifically described activities, such as the recruitment, the
training, the making or possession of falsified documents etc.,
having a preparatory role as regards the carrying out of a criminal
plan or the actual commission of terrorist acts. An intensification of
penal intervention may be achieved also through the extension of
forms of participation or of indictment of complicity (B.2) through
the modification of or even the derogation from the commonly
stated conditions for penal liability on the matter, such as the penal
relevance of the agreement not followed by the commission of the
Special attention will have to be given to separate indictments for
those activities having a collateral or preparatory character and a
collective nature, such as the supporting, the assistance, and the
« external » aid (on the part of professionals, lawyers, doctors etc.)
to criminal activities and associations or to associated or
It may be of relevance the provision of offences punishing the
association for particular criminal purposes (B.3), in addition to a
possible liability of moral persons (B.4).
As to terrorism and other offences characterised by ideological,
political or religious contents, they may also be relevant – as a
form of expansion of punishable preparation and participation –
propaganda and proselytism activities, mainly consisting in the
expression and/or dissemination of thoughts and opinions, with
punishment for the glorification and for the publication and
dissemination of papers or materials etc. (B.5).
The scope of indictment techniques and of formulations of the
offences must always be correlated to the frame of the applicable
sentencing in order to make possible both an « internal »
comparison among the sentencing provided for the various
offences in the matter, and an « external » comparison with the
sentencing provided for equivalent « common » offences, in order to
ascertain their proportionality with the degree and the typologies of
harm to juridically protected interests (B.6).
(C) Together with the instruments having a penal nature, we need
to take into account also the opportunity to turn to instruments
having a different nature, particularly preventive measures,
representing a privileged way of combating organized crime and
terrorism « in advance ».
We must then analyze, from the point of view of substantive (not
only procedural) criminal law, chiefly at an international level, the
problem of victims of both very serious crime and of terrorism,
whose fundamental rights are certainly threatened and violated in a
particularly loathsome way as they are mostly innocent and
defenceless persons. Their role may be specifically recognized
both from the point of view of the formulation of the offences (type
and degree of the punishment in respect of the danger or actual
damage they may suffer) and from the point of view of the
mechanisms (having a civil nature, or following extra-judicial
agreements) having a compensatory or « restorative » nature that
(D) We will finally have to give some information about the ongoing
proposals for reformations or normative modifications, and draw
some final considerations and evaluations (E), starting from
doctrinal and jurisprudential stances, on the exigency of protecting
fundamental rights and basic guarantees (besides procedural
guarantees) as they are acknowledged in international Charters
and Conventions, as well as in national Constitutions on the matter
of human rights.
A) General questions
1. Individuation of the manifestations of the phenomenon of
globalization at an internal penal level.
2. General outlining of the general juridical system of preparatory
acts and of participation in your system.
2.1. Preparatory acts :
2.1.1. Limits with reference to attempt.
2.1.2. Punishable preparatory acts (and/or conspiracy ?).
2.1.3. Field of applicability (general / specific for certain offences).
2.1.4. Applicable punishments : a comparison with the punishments
applicable to the offences committed.
2.2. Participation :
2.2.1. Treatment of the acting in concert of individuals in the
commission of the offence (categories of the criminal, instigation,
2.2.2. Regulation and sanction of the acts of participation.
3. Preparation and participation in relation to terrorism and other
very serious forms of crime :
3.1. Does it exist, in your juridical regulations, explicit prescriptive
definitions of « terrorism » and of other very serious crimes ? Are
they complying or harmonized with the internationally established
definitions (for example, with the Framework Decision of the
European Union of 2002 against terrorism or with the UNO
Convention of 2000 against multi-national organized crime)?
3.2. What are the constitutive (or differential) elements of these
specific offences with regard to common offences ? The objective
element (actus reus)? The subjective element (mens rea)?
3.3. In particular, does the incriminating or aggravating rule
explicitly state that the perpetrator be acting in the pursuit of a
specific intent (having a terrorist or subversive character, or
concerning the aims of the criminal organization)?
B) Characteristics of the expansion of the forms of
preparation and participation
1. Has there been an expansion of the forms of preparation and
participation (for example, concerning offences in the matter of
terrorism and other forms of very serious crime)?
1.1. Are the mere preparatory acts, such as the agreement or
incitement not followed by the commission of the crime, punished
as separate offences or as conspiracy ?
1.2. More particularly, are there specific indictments (and, if so,
when have they been introduced) punishing separately such
specific activities (as the recruitment, the training, the making or
possession of falsified documents, the making, possession or
purchasing of explosive substances or of weapons etc.), that take
place prior to the actual carrying out of the acts of terrorism or of
the criminal plan ?
1.3. Do more preparatory and/or accessory offences, in respect of
the commission of these offences, exist ?
1.4. Are there cases where the same individual can be indicted and
punished for the commission of one of these preparatory acts (for
example, « recruitment ») and also for the commission of one of the
offences representing the « final aim » (for example, « commission of
an act of terrorism »)? and, possibly, also for the offence of
association or participation in a terrorist or criminal group pursuing
the same aim (infra, B.3)?
1.5. Are there regulations or special conditions for the penal
relevance of the attempt in these fields of crime ? Which
substantive or differentiating elements (concerning the objective or
subjective element of the offence) do they possibly present if
compared to the ones of the attempt for corresponding common
2. Are there special regulations or conditions for the penal
relevance of the participation in the offence or for the punishment
of complicity in these fields of crime ?
2.1. What are their constituent or differential elements in respect of
those concerning the objective and subjective element of the
complicity provided in common or corresponding offences ?
2.2. Are mere agreement or mere incitation (conspiracy) not
followed by the commission of the offence in anyway punishable as
separate offences or, possibly, as conspiracy ? Or are they
punishable only in the case of terrorist offences and other very
serious crimes ?
2.3. Does there exist at a procedural level (or through the
indictment itself) a form of presumption or of simplification of the
evidence of participation ?
2.4. Is there an explicit punishment for preparatory or collateral
conduct, such as support, assistance, « external » help (on the part
of non-associated individuals or through adequate social
contributions, for example, on the part of a lawyer, a doctor...) to
the activities and associations constituting very serious crime, or to
individual associated ?
3. Is there a separate offence for « terrorist » association or
organization or group, or for an organization addicted to very
serious crime, with respect to the conspiracy or mere complicity in
such crimes ? Or are common offences (if the case, aggravated) for
criminal association applied ?
3.1. If specific offences exist, how are these criminal associations
identified ? Does this identification depend upon the status of the
individuals involved, by his/her/their inclusion in lists drawn up by
the government authorities, or in similar lists, or by (material and/or
moral) elements described in abstract terms by the law ?
3.2. What are the requirements constituting and/or characterizing a
terrorist or criminal association or group (a certain number of
participants, organizing requirements, distribution of roles, stability
or terms of the organization or of the group, nature of the criminal
plan, specific purposes pursued etc.)?
3.3. Is there a difference in sentencing between the mere
participation and other more aggravating conduct (such as the
constitution, the organization, the direction etc.)? Are there specific
rules or conditions concerning the responsibility of members or
leaders of the association for the commission of offences
representing the purpose of the criminal association if they did not
take an active part in the commission of the offence ?
4. Are the provisions and sanctions concerning the (penal or non-penal) liability of entities (legal persons), if they are in general
provided in your national law, also applicable to the commission of
acts of terrorism or other very serious crimes ? What is the
relationship between such regulations and the criminal indictment
of a terrorist or criminal association or group (subsidiary,
alternative, cumulative etc.)?
5. Do there exist specific indictments for conduct consisting of the
expression and/or dissemination of thought or opinions linked to
terrorism, distinguishable from the possible penal relevance of the
instigation to commit acts of terrorism or by other forms of moral
participation or by assisting another to commit such acts ?
5.1. In particular, are glorification, ideological proselytism, the
publication and circulation of papers and other matters, also audioisual and on the internet, propaganda etc. linked to terrorism,
separately punished ?
5.2. What are the objective and subjective elements required for
the liability of each of such acts to be punished ? When are they
5.3. What is their sentence, as compared with the one provided for
other acts of terrorism and/or corresponding common offences ?
5.4. What are their relationships and which problems may arise
with respect to freedom of thought, freedom of opinion and
expression, protected by international Charters and by democratic
6. Is there a difference in the sentencing of anticipated forms of
preparation and participation ? What is their nature and measure
(from the point of view of the type and term of the applicable
penalties, of possible supplementary penalties or measures, of the
criteria to be applied, of possible specific regulations derogating
6.1. Is the enforcement of the above-mentioned penal indictments,
what is the importance of the withdrawal from and/or a possible
compensation, or of reconciliation with the victim/victims ?
6.2. Are there peculiarities concerning the actual enforcement of
the penalty and of the sanctions or measures, particularly taking
into account prison treatment and possible restrictions or
conditions for the granting of prison benefits or other institutes in
favour of prisoners ?
C) Other questions
1. Do there exist specific preventive measures or other instruments
having a non-penal nature to combat terrorist and very serious
criminal activities and associations ? In particular, if non-nationals
are involved ?
2. What is the importance of the role of victims in the formulation
and enforcement of the above-mentioned penal indictments ?
D) Reform proposals
1. Are there recent doctrinal or jurisprudential stances concerning
the expansion of the forms of preparation and participation that
might raise problems of compatibility with the fundamental rights
acknowledged by international Charters and Conventions, as well
as by the national Constitutions ?
2. Are there requests as to the revision or modification of the
provisions considered ? What is their nature ? Which basic needs
are they taking into account ?
3. Are there legislative reforms under discussion or in preparation ?