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A War on Terror? pp 305–320Cite as

The Evolution of the Antiterror Legal and Institutional Framework in Croatia

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Abstract

In this chapter, a brief overview of the Croatian antiterrorism legal framework – relevant substantive and procedural criminal law provisions, as well as the assessment of its compliance with ratified antiterrorist international treaties – is presented. Special attention is given to considerations concerning the implementation of article 5 of the Council of Europe Convention on the Prevention of Terrorism. The Republic of Croatia has ratified this Convention and is bound by its provisions after 1 May 2008. In this respect, the author is of the opinion that the drafting of a criminal offence of public provocation to commit terrorism-related criminal offences in domestic substantive criminal law should not be treated as a purely technical issue but as a major challenge in searching for appropriate balance in efficient suppression of terrorism while preserving human rights.

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Notes

  1. 1.

    S/RES/1267 (1999), 15 October 1999.

  2. 2.

    See in general Cassese A. (2001). Terrorism is Also Disrupting Some Crucial Legal Categories of International Law, Eur J Int Law 12, 995; Becker S. (2003). “Mirror, Mirror on the Wall…”, Assessing the Aftermath of September 11th, 37 Valparaiso University Law Review 563.

  3. 3.

    See in general Laqueur W. (1998). The New Terrorism - Fanatism and the Arms of Mass Destruction, London.

  4. 4.

    Committee of Experts on Terrorism (CODEXTER), Profiles on Counter-Terrorist Capacity – Croatia, June 2006, p. 1., available at http://www.coe.int/gmt, last visited 25 March 2008.

  5. 5.

    Ibid. p. 2.

  6. 6.

    See http://www.un.org/sc/ctc/, last visited 25 March 2008.

  7. 7.

    The current Chairman of the Counter-Terrorist Committee is Ambassador and Permanent Representative of the Republic of Croatia to the UN who took up his post in February 2008.

  8. 8.

    Report of the Republic of Croatia pursuant to paragraph 6 of Security Council Resolution 1373 (2001) of 28 September 2001, par. 6.

  9. 9.

    Pursuant to article 140 of the Constitution of the Republic of Croatia: “International agreements concluded and ratified in accordance with the Constitution and made public, and which are in force, shall be part of the internal legal order of the Republic of Croatia and shall be above law in terms of legal effects”.

  10. 10.

    Convention on Offences and Certain Other Acts Committed on Board Aircraft, 1963. (hereinafter: Aircraft Convention).

  11. 11.

    Convention for the Suppression of Unlawful Seizure of Aircraft, 1970. (hereinafter: Unlawful Seizure Convention).

  12. 12.

    Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 1971. (hereinafter: Civil Aviation Convention).

  13. 13.

    Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, 1973. (hereinafter: Diplomatic agents Convention).

  14. 14.

    European Convention on the Suppression of Terrorism, 1977. (hereinafter: Depoliticizing Convention).

  15. 15.

    International Convention Against the Taking of Hostages, 1979. (hereinafter: Hostages Convention).

  16. 16.

    Convention on the Physical Protection of Nuclear Material, 1980. (hereinafter: Nuclear Materials Convention)

  17. 17.

    Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988. (hereinafter: Maritime Convention).

  18. 18.

    18 Protocol for the Suppresion of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Montreal, 1988. (hereinafter: Airport Protocol).

  19. 19.

    Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, 1988. (hereinafter: Fixed Platform Protocol).

  20. 20.

    20 Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1991. (hereinafter: Plastic Explosives Convention).

  21. 21.

    21 International Convention for the Suppression of Terrorist Bombings, 1997. (hereinafter: Terrorist Bombing Convention).

  22. 22.

    22 International Convention for the Suppression of the Financing of Terrorism, 1999. (hereinafter: Terrorist Financing Convention).

  23. 23.

    Protocol amending the European Convention on the Suppression of Terrorism, 2003. (hereinafter: Depoliticizing Protocol).

  24. 24.

    24 International Convention for the Suppression of Acts of Nuclear Terrorism, 2005. (hereinafter: Nuclear Terrorism Convention).

  25. 25.

    Council of Europe Convention on the Prevention of Terrorism, 2005. (hereinafter: Terrorism Prevention Convention, CECPT).

  26. 26.

    Legislative Guide to the Universal Anti-Terrorism Conventions and Protocols, United Nations, Office for Drugs and Crime, 2004, p. 8.

  27. 27.

    See Human Rights and the fight against terrorism, The Council of Europe Guidelines, available at http://www.coe.int/t/E/Human_Rights/Lignes_dir_compendium_en.asp#TopOfPage, last visited 25 March 2008.

  28. 28.

    Official Gazette 110/97, 27/98, 50/00, 129/00, 51/01, 111/03, 190/03, 105/04, 84/05, 71/06, and 110/07.

  29. 29.

    Under the article 1.1. (a) and (b) of the Diplomatic agents Convention “internationally protected person” is:

    1. (a)

      A Head of State, including any member of a collegial body performing the functions of a Head of State under the constitution of the State concerned, a Head of Government or a Minister for Foreign Affairs, whenever any such person is in a foreign State, as well as members of his family who accompany him

    2. (b)

      Any representative or official of a State or any official or other agent of an international organization of an intergovernmental character who, at the time when and in the place where a crime against him, his official premises, his private accommodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household”.

  30. 30.

    Supra note 28, article 170. par. 1.

  31. 31.

    Ibid., par. 4.

  32. 32.

    This provision is not entirely in line with article 1 of the Hostages Convention, which requires than an “aim to compel” could be directed not only to some state or international organization, but to natural person or legal entity or a group of persons as well.

  33. 33.

    Supra note 28, article 171. par. 1.

  34. 34.

    Ibid. par. 3 and 4.

  35. 35.

    For the definition of the “nuclear material”, see article 1.a of the Nuclear Materials Convention: “nuclear material” means plutonium except that with isotopic concentration exceeding 80% in plutonium-238; uranium-233; uranium enriched in the isotopes 235 or 233; uranium containing the mixture of isotopes as occurring in nature other than in the form of ore or ore-residue; any material containing one or more of the foregoing.

  36. 36.

    Supra note 28, article 172. par. 1.

  37. 37.

    Ibid. par. 2.

  38. 38.

    Ibid. par. 3.

  39. 39.

    Ibid. par. 4.

  40. 40.

    Ibid. par. 5.

  41. 41.

    According to article 3.1 of the Unlawful Seizure Convention an aircraft is considered to be in flight “at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation. In the case of a forced landing, the flight shall be deemed to continue until the competent authorities take over the responsibility for the aircraft and for persons and property on board”.

  42. 42.

    Supra note 28, article 179. par. 1.

  43. 43.

    Ibid. par. 2. and 3.

  44. 44.

    Supra note 28, article 181

  45. 45.

    In the Croatian legal system, legal persons can also be held liable for all terrorism-related criminal offences. Because the Law on the Responsibility of Legal Persons for Criminal Offences does not contain a closed list (numerus clausus) of criminal offences for which legal entities can be legally responsible, it thus allows the initiation and carrying out of prosecution against legal entities for all criminal offences including those with elements of international terrorism. A list of possible sentences includes: fine, termination of the legal entity, parole sentence, and security measures (a ban on conducting certain activities or business affairs, a ban on acquiring permissions, authorizations, concessions or subventions, a ban on conducting business with users of a state or a local budget, and confiscation of items).

  46. 46.

    Official Gazette No. 111/2003

  47. 47.

    Supra note 28, article 169. par. 1.

  48. 48.

    Ibid. par. 2.

  49. 49.

    Ibid. par. 3.

  50. 50.

    Ibid. par. 4.

  51. 51.

    Supra note 28, article 141. par. 1.

  52. 52.

    Supra note 28, article 187. par. 1.

  53. 53.

    Ibid. par. 3.

  54. 54.

    Ibid. par. 4.

  55. 55.

    Supra note 28, article 187b.

  56. 56.

    Supra note 28, article 187a par. 2.

  57. 57.

    Criminal Procedure Act, Official Gazette 110/97, 27/98, 58/99, 112/99, 58/02, 143/02, 62/03, and 115/06.

  58. 58.

    S/RES/1624 (2005), 14 September 2005, at 1.a.

  59. 59.

    See article 2.3.(a) of the Terrorist Bombings Convention, article 2.4.(a) of the Nuclear Terrorism Convention.

  60. 60.

    See article 2.3.(b) of the Terrorist Bombings Convention, article 2.4.(b) of the Nuclear Terrorism Convention.

  61. 61.

    See article 2.3.(c) of the Terrorist Bombings Convention, article 2.4.(c) of the Nuclear Terrorism Convention.

  62. 62.

    Council of Europe Convention on Prevention of Terrorism, CETS, No 196, http://conventions.coe.int., article 5.

  63. 63.

    The term “distribution” refers to the active dissemination of a message advocating terrorism, while the expression “making available” refers to providing that message in a way that is easily accessible to the public, for instance, by placing it on the Internet or by creating or compiling hyperlinks in order to facilitate access to it. Council of Europe Convention on Prevention of Terrorism, Explanatory Report, par. 102.

  64. 64.

    The term “to the public” makes it clear that private communications fall outside the scope of this provision. In order to make a message available to the public, a variety of means and techniques may be used. For instance, printed publications or speeches delivered at places accessible to others, the use of mass media or electronic facilities, in particular the Internet, which provides for the dissemination of messages by e-mail or for possibilities such as the exchange of materials in chat rooms, newsgroups, or discussion fora. Ibid. par. 103. and 104.

  65. 65.

    Supra note 62.

  66. 66.

    Ibid. par. 2.

  67. 67.

    Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No.: 005, available at http://conventions.coe.int, last visited 25 March 2008. Article 10 ECHR reads: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”.

  68. 68.

    Handyside v. United Kingdom, 7 December 1976, par. 49.

  69. 69.

    69 “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”. Supra note , article 10. par. 2.

  70. 70.

    Background Paper on Human Rights Considerations in Combating Incitement to Terrorism and Related Offences, OSCE/CoE Expert Workshop, Vienna, 2006, p. 5.

  71. 71.

    Supra note 62, article 12. par. 1.

  72. 72.

    Ibid. par. 2.

  73. 73.

    Supra note 28, article 37.

  74. 74.

    Supra note 63, par. 98.

  75. 75.

    Supra note 63, par. 99 and 100.

  76. 76.

    Terrorism Act 2006, available at http://www.opsi.gov.uk/acts/acts2006/ukpga_20060011_en_1, last visited 25 March 2008.

  77. 77.

    Hunt A., Criminal Prohibitions on Direct and Indirect Encouragement of Terrorism (2007) Criminal Law Review. 441.

  78. 78.

    “When considering whether such danger is caused, the nature of the author and of the addressee of the message, as well as the context in which the offence is committed shall be taken into account in the sense established by the case-law of the European Court of Human Rights. The significance and the credible nature of the danger should be considered when applying this provision in accordance with the requirements of domestic law”. Supra note 63, par. 100.

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Author information

Authors and Affiliations

  1. Faculty of Law, University of Zagreb, Zagreb, Croatia

    Davor Derenčinović

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  1. Davor Derenčinović
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Correspondence to Davor Derenčinović .

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  1. Internationales Strafrecht, MPI für Ausländisches und, Günterstalstr. 73, Freiburg, 79100, Germany

    Marianne Wade

  2. Fac. Criminal Justice Sciences, University of Sarajevo, Zmaja od Bosne 8, Sarajevo, 71000, Bosnia-Herzegovina

    Almir Maljevic

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Derenčinović, D. (2010). The Evolution of the Antiterror Legal and Institutional Framework in Croatia. In: Wade, M., Maljevic, A. (eds) A War on Terror?. Springer, New York, NY. https://doi.org/10.1007/978-0-387-89291-7_11

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