Aspects regarding the criminalization and investigation of the offences related to terrorist activities in romanian legislation
| Author | Adrian Cristian Moise |
| Position | Associate Professor, PhD, Spiru Haret University of Bucharest, Faculty of Juridical, Economic and Administrative Sciences, Craiova, Romania; Attorney-at-law, Dolj Bar Association, Romania |
| Pages | 146-156 |
146 ADRIAN CRISTIAN MOISE
ASPECTS REGARDING THE CRIMINALIZATION
AND INVESTIGATION OF THE OFFENCES RELATED
TO TERRORIST ACTIVITIES IN ROMANIAN LEGISLATION*
Adrian Cristian MOISE1**
Abstract:
Starting from the definition of terrorism, this article aims to present and analyze aspects related
to the crimes in relation to terrorist activities at the national and European level.
First, the article analyzes the offences related to terrorist activities provided by Law no.535/2004
on the prevention and combating of terrorism in Romania, after which the article analyzes the
offences related to terrorist activities included in the European Union Directive 2017/541 from the
15th of March 2017 on combating terrorism, as well as in the Council of Europe Convention on the
Prevention of Terrorism and the Additional Protocol to the Council of Europe Convention on the
Prevention of Terrorism.
At the same time, the article presents and analyzes aspects regarding the activities of prevention
and combating of the offences related to terrorist activities, as well as the criminal investigation of
these offences.
Finally, the article will establish whether the Romanian legislation regarding the offences
related to terrorist activities adapted to the provisions in the field included in the most important
legal instruments in the field of prevention and combating of terrorism at the European and
international level.
Keywords: terrorism; offences related to terrorist activities; investigation; prevention;
combating.
§1. Preliminary considerations
The most important legal instrument in combating terrorism in Romania is
Law no.535/2004 on the prevention and combating of terrorism. Article 1 of the
Law no. 535/2004 on the prevention and combating terrorism defines terrorism as
“those actions, inactions, as well as threats against them which pose public danger,
* The article was prepared for the International Law Conference, "Current Issues within EU and
EU Member States: Converging and Diverging Legal Trends", 3rd edition, held in Braşov (Romania)
and organized by the Faculty of Law – Transilvania University of Brasov on the 29th and 30th of
November 2019.
** Associate Professor, PhD, Spiru Haret University of Bucharest, Faculty of Juridical, Economic
and Administrative Sciences, Craiova, Romania; Attorney-at-law, Dolj Bar Association, Romania;
E-mail: adriancristian.moise@gmail.com.
Law Review special issue, Decembre 2019, pp. 146-156
Aspects regarding the criminalization and investigation… 147
affect the life, the bodily integrity or the health of the people, the material factors,
the international relations of the states, the national or international security, are
politically, religiously or ideologically motivated and are committed for one of the
following purposes: a) intimidating the population or a segment thereof by
producing a strong psychological impact; b) the illegitimate constraint of a public
authority or international organisation to perform, not to perform, or refrain from
performing a particular act; c) serious destabilization or destruction of the
fundamental, constitutional, economic or social political structures of a state or
international organisations”.
Under the Article 4(1) of Law no.535/2004 on the prevention and combating of
terrorism is defined the notion of terrorist entity, “this being a person, a grouping, a
structured group or organisation, which, by any means, directly or indirectly
commits or participates in acts of terrorism; is preparing to commit acts of
terrorism; promotes or encourages terrorism; supports, in any way, terrorism”.
According to the provisions of Article 4(2) of Law no.535/2004, terrorist is “the
person who committed an offence under this law or intends to prepare, commit,
facilitate or instigate acts of terrorism”.
In accordance with the provisions of Article 3 of Law no.535/2004, “the
terrorism acts are transnational in nature, if: they are committed in the territory of
at least two states; they are committed in the territory of one state, but part of their
planning, preparation, management or control takes place in the territory of
another state; they are committed on the territory of one state, but involve a
terrorist entity that carries out activities on the territory of another state; are
committed on the territory of one state, but have substantial effects on the territory
of another state”.
The offences related to terrorist activities are the following: public provocation
to commit a terrorist offence, recruitment for terrorism, providing training for
terrorism, receiving training for terrorism, travelling for the purpose of terrorism
and terrorist financing.
§2. The offences related to terrorist activities stipulated by Law no.535/2004
on the prevention and combating of terrorism
The offences related to terrorist activities are included in Articles 33, 33¹, 33²,
35¹ and 36 of the Law no.535/2004 on the prevention and combating of terrorism.
Article 33 of the Law no.535/2004 punishes the following acts, if they are
committed for the purposes provided by Article 1: procuring, holding, preparing,
manufacturing, transporting or providing dual-use products or technologies or
military or explosive or flammable materials, for the purpose of producing
destructive means, explosive devices of any kind, as well as chemical, biological,
148 ADRIAN CRISTIAN MOISE
radiological or nuclear, which could endanger the life, health of humans, animals
or the environment; providing instructions on the manufacture or use of
explosives, firearms or any other weapons, harmful or dangerous substances, or on
specific techniques or methods of committing or supporting the commission of an
act of terrorism, knowing that the respective competences offered are or can be
used for this purpose; receiving or acquiring instructions by self-documenting the
manufacture or use of explosives, firearms or any other weapons, harmful or
dangerous substances, or on specific techniques or methods of committing or
supporting the commission of an act of terrorism; qualified theft committed in
order to commit the offences provided by this article; facilitating border crossing,
hosting or facilitating access to the target area of a person known to have
participated or committed or is going to participate or commit a terrorist offence;
collecting or holding, for the purpose of transmitting, or making available data and
information on objectives targeted by a terrorist entity; forgery of official
documents or their use for the purpose of facilitating a terrorist act; the blackmail
committed for the purpose of committing an act of terrorism.
Article 33¹ of the Law no.535/2004 punishes the act of asking one or more
persons, directly or indirectly, by any means, to commit or support the commission
of an act of terrorism.
Article 33² of the Law no.535/2004 incriminates the act of urging the public,
verbally, in writing or by any other means, to commit crimes provided by the Law
no.535/2004. The same Article 33² incriminates the promotion of a message by
propaganda committed by any means, in public, with the intention of instigating
the act of terrorism, whether or not the message directly supports the terrorism or
whether or not the crimes have been committed.
Article 35¹ of the Law no.535/2004 incriminates the movement of a person
from the territory of the State of which he is a citizen or from the territory of which
he resides or resides in or on the territory of a state other than the one whose
citizen or resident is for the purpose of committing, planning or preparing terrorist
acts or to participate in them or to offer or receive training or preparation for
committing an act of terrorism or for supporting, in any way, a terrorist entity,
constitutes displacement for terrorist purposes. Moreover we emphasize that the
same article punishes any act of organization or facilitation by which assistance is
offered to any person to travel abroad for terrorist purposes, knowing that the
assistance thus is provided for this purpose.
Article 36 of the Law no.535/2004 incriminates the offence of terrorist
financing which consists in the collection or making available, directly or
indirectly, of funds, licit or illicit, with the intention of being used or knowing that
they are to be used, in whole or in part, for committing acts of terrorism or for
supporting a terrorist entity.
Aspects regarding the criminalization and investigation… 149
§3. The offences related to terrorist activities stipulated by the legal
instruments in the fied of combating terrorism at the European and international
level
The most important legal instruments in the field of combating terrorism at
European and international level are the following: the Directive 2017/541/EU2 of
the European Parliament and of the Council of 15 March 2017 on combating
terrorism; the Council of Europe Convention on the Prevention of Terrorism; the
Additional Protocol to the Council of Europe Convention on the Prevention of
Terrorism.
On the 31st of March 2017 it was published in the Official Journal of the
European Union the Directive 2017/541/EU of the European Parliament and of the
Council of 15 March 2017 on combating terrorism, replacing Framework Decision
2002/475/JHA of 13 June 2002 on combating terrorism, which is the most
important legal instrument in the fight against terrorism at European Union level.
Directive 2017/541/EU on combating terrorism covers the offences related to
terrorist activities in the Articles 5-12, which refer to public provocation to commit
a terrorist offence, recruitment for terrorism, providing training for terrorism,
receiving training for terrorism, travelling for the purpose of terrorism, organising
or otherwise facilitating travelling for the purpose of terrorism, terrorist financing
and other offences related to terrorist activities, as it is for example, aggravated
theft for the purpose of committing terrorist offences, extortion with a view to
committing one of the terrorist offences and drawing up or using false
administrative documents with a view to committing one of the terrorist offences.
The Convention of the Council of Europe on the Prevention of Terrorism3,
adopted in Warsaw on the 16th of May 2005, represents one of the most important
legal instruments in the field of prevention and combating terrorism, which was
ratified by Romania by Law no. 411/20064.
Pursuant to the Council of Europe Convention on the Prevention of Terrorism,
in Articles 5-7, the signatory parties must take the necessary measures to provide
as a crime according to their national law the following criminal behaviours that
lead to offences related to terrorist activities: public provocation to commit a
terrorist offence (Article 5); recruitment for terrorism (Article 6); training for
terrorism (Article 7). All the three behaviours to commit offences must be
committed without right and intentionally.
2 Directive 2017/541/EU of the European Parliament and of the Council of 15 March 2017 on
combating terrorism, replacing Framework Decision 2002/475/JHA of 13 June 2002 on combating
terrorism and and amending Council Decision 2005/671/JHA, Official Journal of the European
Union, 31.03.2017, L88/6.
3 Council of Europe on the Prevention of Terrorism from the 16th of May 2005, Retrieved 31
October 2019 from: http://conventions.coe.int/Treaty/en/Treaties/html/196.htm
4 Romanian Official Gazette no.949 from the 24th of November 2006.
150 ADRIAN CRISTIAN MOISE
The offences related to terrorist activities stipulated by the Council of Europe
Convention on the Prevention of Terrorism can also be done by using the Internet
network5.
The Additional Protocol to the Council of Europe Convention6 on the
prevention of terrorism was adopted in Riga on the 22sd of October 2015. The
purpose of this Additional Protocol is to complement the provisions of the Council
of Europe Convention on the prevention of terrorism as regards the
criminalization of the deeds described in Articles 2 to 6, thereby enhancing the
efforts of States Parties to prevent terrorism and its negative effects on the full
exercise of human rights, in particular the right to life, both by measures to be
taken at national level and by international cooperation, taking into account the
multilateral or bilateral treaties or agreements between the parties, currently
in force.
This Protocol complements the Council of Europe Convention on the
Prevention of Terrorism by adding provisions on the criminalization of acts related
to terrorist offenses and provisions on the exchange of information. The offences
provided in the protocol, such as those in the Convention, are mainly preparatory
in relation to acts of terrorism.
The Additional Protocol to the Council of Europe Convention on the
Prevention of Terrorism incriminates the following offences related to terrorist
activities: receiving training for terrorism (Article 3); travelling abroad for the
purpose of terrorism (Article 4 ); funding travelling abroad for the purpose of
terrorism (Article 5); organising or otherwise facilitating travelling abroad for the
purpose of terrorism (Article 6).
The European Union signed the Additional Protocol to the Council of Europe
Convention on the prevention of terrorism on 22sd of October 2015.
Romania signed the Additional Protocol to the Council of Europe Convention
on the prevention of terrorism on the 11th of March 2016 and shall ratify it in the
immediate future.
§4. The forensic investigation of the offences related to terrorist activities
The process of investigating the offences related to terrorist activities takes
place in two stages: the informative-operative investigation stage referring to checks
and activities specific to collection of information carried out exclusively by state
bodies with duties in the field of national security, such as the Romanian
Intelligence Service, before the commencement of the trial phase of criminal
5 Britz, Marjie T. (2013). Computer Forensics and Cyber Crime. An Introductio n, Third Edition, Upper
Saddle River, New Jersey: Pearson Education Inc., pp. 149-150.
6 The Additional Protocol to the Council of Europe Convention, Retrieved 31 October 2019 from:
https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/217
Aspects regarding the criminalization and investigation… 151
prosecution and which may contribute to the commencement of criminal
prosecution and the stage of criminal investigation that is carried out by the judicial
bodies, that is, the Service for combating terrorist offences and those against
national security within the Directorate for the Investigation of Organized Crime
and Terrorism of the Prosecutor’s Office near the High Court of Cassation and
Justice, helped by state bodies with duties in the field of national security during
the trial phase of the prosecution7.
The informative-operative investigation stage s carried out during several phases:8
planning; obtaining information; verification of information; information analysis;
notifying the competent judicial bodies.
After completing the file of informative documentation9, the Romanian
Intelligence Service will notice Service for combating terrorist offences and those
against national security within the Directorate for the Investigation of Organized
Crime and Terrorism of the Prosecutor’s Office near the High Court of Cassation
and Justice by means of a report of finding, according to the provisions of Article
21 (1)10 of the Law no.51/1991 regarding the national security of Romania, Article
1111 of the Law no.14/1992 regarding the organization and functioning of the
Romanian Intelligence Service, related to Article 6112 paragraph (1) (c) from the
Romanian Criminal Procedure Code, in order to start the criminal prosecution, in
connection with the commission of an offence related to terrorist activities.
7 Moise, Adrian Cristian; Stancu, Emilian (2017). Forensics. Methodological elements for investigating
offences. University course, Bucharest: Universul Juridic, pp. 290-291.
8 Idem, pp. 295-299; Ronczkowski, Michael R. (2012). Terrorism and organized hate crime.
Intelligence gathering, analysis and investigations, Third Edition, Boca Raton, Florida: CRC Press, Taylor
& Francis Group, pp. 151-183.
9 Maras, Marie Helen (2014). The CRC Press Terrorism Reader, Boca Raton, Florida: CRC Press,
Taylor & Francis Group, p. 137 and the following.
10 Article 21 paragraph 1 of the Law no. 51/1991 regarding the national security of Romania
states: "The data and information of interest for national security, resulting from the authorized
activities, if it indicates the preparation or the commission of a crime provided by the criminal law, are
retained in writing and transmitted to the bodies of criminal prosecution, according to Article 61 of
the Romanian Criminal Procedure Code, accompanied by the mandate issued for them, to which is
added the proposal to declassify, as the case may be, total or in an extract, according to the law, of the
mandate. The intercepted calls and/or communications, recorded in writing, and/or the recorded
images are transmitted to the criminal investigation bodies in their entirety, accompanied by their
original digital content ”.
11 Article 11 of the Law no. 14/1992 regarding the organization and functioning of the Romanian
Intelligence Service provides: “If from the specific checks and activities provided in the Articles 9 and
10 result in data and information indicating the preparation or commission of a crime provided by the
criminal law, they are transmitted to the criminal prosecution bodies under the conditions provided
by the Article 61 of the Romanian Criminal Procedure Code”.
12 Article 61 paragraph (1) (c) of the Romanian Criminal Procedure Code provides: "(1)
Whenever there is a reasonable suspicion regarding the commission of a crime, they are obliged to
draw up a report on the circumstances found: c) public order bodies and national security, for the
offences found during the exercise of the duties provided by the law ”.
152 ADRIAN CRISTIAN MOISE
The criminal prosecution is carried out by the competent judicial bodies within
the Service for combating terrorist offences and those against national security
within the Directorate for the Investigation of Organized Crime and Terrorism of
the Prosecutor’s Office near the High Court of Cassation and Justice, in order to
establish the existence of the offences related to terrorist activities, to identify the
perpetrator and to know all the circumstances necessary for the just settlement of
the case.
The Romanian Intelligence Service, through the Anti-Terrorist Operational
Coordination Center technically coordinates the National System for the
Prevention and Combating of Terrorism. At the same time, within the Romanian
Intelligence Service there are two departments that fight against terrorism, besides
the Anti-Terrorist Operational Coordination Center: The department dedicated to
the collection of information, which ensures constant monitoring and analysis of
terrorist risks at national level and in relation to the global evolution of the terrorist
phenomenon; The Anti-Terrorist Brigade, which provides anti/counterterrorism
intervention at national level, but also airport security, on all sixteen civil airports
in Romania, as well as the security of the flights of the Romanian aviation
companies.
According to the provisions of Article 11¹ of the Law no.535/2004 on the
prevention and combating of terrorism, in the case of imminence or the occurrence
of an offence related to terrorist activities on the territory of the country, at the
proposal of the director of the Romanian Intelligence Service, the Supreme Council
for the Defense of the Country may issue a decision regarding the declaration of
the terrorist crisis situation. Thus, on the logistical and operational support of the
Anti-Terrorist Operational Coordination Center, the National Antiterrorist Action
Center is activated, which ensures at national level the management of the terrorist
crisis, in order to remove the threats to the national security generated by the fact
created situation.
The process of investigating terrorism continues with the stage of the criminal
investigation of the offences related to terrorist activities, through which the
transition from the secret investigation to the criminal investigation that begins
with the opening of the criminal process is initiated, by starting the criminal
prosecution under the conditions of ensuring the procedural rights and guarantees
of all terrorism suspects.
The criminal investigation of the offences related to terrorist activities is carried
out on the basis of the rules of the criminal procedural law, as regulated by the
Romanian Criminal Procedure Code.
The criminal investigation of the offences related to terrorist activities uses
special techniques and methods of supervision or investigation, provided by
Article 138 of the Romanian Criminal Procedure Code, these being the following:
the interception of communications or any type of distance communication; access
to a computer system; video, audio or photo surveillance; localization or tracking
Aspects regarding the criminalization and investigation… 153
by technical means; obtaining data regarding a person's financial transactions;
retention, delivery or search of postal items; the use of undercover investigators
and collaborators; authorized participation in certain activities; supervised
delivery; obtaining the traffic and location data processed by the providers of
public electronic communications networks or the providers of electronic
communications services for the public. The special investigation techniques and
methods provided by Article 138 (1) (a-d) of the Romanian Criminal Procedure
Code are used under the name of technical supervision13.
For the relationship with the providers of electronic communications for the
public, the National Center for Interception of Communications within the
Romanian Intelligence Service is designated with the role to obtain, process and
store information in the field of national security. At the request of the criminal
prosecution bodies, the National Center for Interception of Communications
ensures their direct and independent access to the technical systems for the
purpose of executing the technical supervision provided by the Article 138 (1) (a)
of the Romanian Criminal Procedure Code, namely the interception of
communications or any type of distance communication.
The concrete conditions regarding the access of the judicial bodies to the
technical systems are established through cooperation protocols concluded by the
Romanian Intelligence Service with the Public Ministry, the Ministry of Internal
Affairs, as well as with other institutions within which it operates, under the
conditions of the Article 57 (2) of the Romanian Criminal Procedure Code, the
special criminal investigation bodies.
The criminal jurisdiction as the first court of trial for the offences related to
terrorist activities belongs to the High Court of Cassation and Justice.
The National Office for the Prevention and Combating of Money Laundering
has a very important role in the investigation of the offences related to terrorist
activities, which represents a specialized body with legal personality, operating
under the subordination of the Government, has as an activity object besides the
prevention and combating of money laundering, and the prevention and
combating of terrorist financing14, according to Article 26 (2) of Law no.656/2002
for the prevention and sanctioning of money laundering, as well as for the
establishment of measures to prevent and combat terrorist financing, and for this
purpose receives, analyzes, processes information and immediately notifies the
Romanian Intelligence Service and the Directorate for the Investigation of
Organized Crime and Terrorism of the Prosecutor’s Office near the High Court of
13 United Nations. United Nations Office on Drugs and Crime. United Nations
Counter-Terrorism Implementation Task Force (2012). The use of the Internet for terrorist purposes, New
York, September 2012, pp. 53-72.
14 Turner, Jonathan E. (2011). Money Laundering Prevention. Deterring, Detecting, and Resolving
Financial Fraud, Hoboken, New Jersey: John Wiley & Sons, Inc., pp. 132-135.
154 ADRIAN CRISTIAN MOISE
Cassation and Justice when it is established the existence of sound indications
regarding suspected terrorist financing operations.
According to the provisions of Article 22¹ of the Law no.535/2004 on the
prevention and combating of terrorism, the Romanian judicial authorities shall
transmit, upon request or ex officio, as soon as possible, to the competent
authorities of another Member State of the European Union the relevant
information collected in the criminal proceedings in relation to terrorist offenses,
when the respective information could be used in the respective Member State for
the prevention, detection, investigation or criminal prosecution of offences related
to terrorist activities.
Unlike the Law no.535/2004 on the prevention and combating of terrorism, the
Council of Europe Convention on the Prevention of Terrorism and the Directive
2017/541/EU on combating terrorism contain provisions regarding the protection,
compensation and support for the victims of terrorism. We remark that the Article
24 from the Directive 2017/541/EU on combating terrorism includes provisions
related to assistance and support to victims of terrorism, referring in particular to:
emotional and psychological support, such as trauma support and counselling;
provision of advice and information on any relevant legal, practical or financial
matters, including facilitating the exercise of the right to information of victims of
terrorism; assistance with claims regarding compensation for victims of terrorism
available under the national law of the Member State concerned. The Article 25
from the Directive 2017/541/EU refers to the existence of measures to protect
victims of terrorism and their family members. Also, the Article 25 pays particular
attention to the risk of intimidation and retaliation and to the need to protect the
dignity and physical integrity of victims of terrorism, including during questioning
and when testifying.
The Article 13 from the Council of Europe Convention on the Prevention of
Terrorism contains measures relating to the protection, compensation and support
for victims of terrorism, that has been committed within its own territory.
Moreover the Article 13 contains provisions regarding the financial assistance and
compensation for the victims of terrorism and their close family members.
§5. Conclusions
Following the carried out analysis, we found out that the text of Articles 33,
33¹, 33², 35¹ and 36 regarding the offences related to terrorist activities from the
Law no.535/2004 on the prevention and combating of terrorism adapted almost
entirely to the provisions of the text of Articles 5-12 of the Directive 2017/541/EU
on combating terrorism, to the provisions of Articles 5-7 of the Council of Europe
Convention on the Prevention of Terrorism and to the provisions of Articles 3-6
Aspects regarding the criminalization and investigation… 155
from the Additional Protocol to the Council of Europe Convention on the
prevention of terrorism.
Thus, we highlight that the actions of prevention and combating of the
offences related to terrorist activities, as well as the forensic investigation
procedures of these offences from the Romanian legal system, adapted to the
actions of prevention, combating and forensic investigation of the offences related
to terrorist activities from the Directive 2017/541/EU, the Council of Europe
Convention on the Prevention of Terrorism and the Additional Protocol to the
Council of Europe Convention on the prevention of terrorism.
In addition to the convergence elements listed above, we have noticed that the
legal instruments from Romania in the field of the offences related to terrorist
activities, also present elements of divergence from the legal instruments at the
European and international level regarding the protection, compensation and
support for the victims of terrorism.
Another element of divergence from the European and international legal
instruments in the field of the offences related to terrorist activities, refers to the
fact that the offences related to terrorist activities from the Law no.535/2004 on the
prevention and combating of terrorism cannot be committed using the Internet
network and the information and communication technology.
Therefore, the Romanian legislators should update as soon as possible the Law
no.535/2004 regarding the offences related to terrorist activities, by introducing an
article referring to the commission of the offences related to terrorist activities by
using the Internet network and the new technologies.
References
1. Britz, Marjie T. (2013). Computer Forensics and Cyber Crime. An Introduction,
Third Edition, Upper Saddle River, New Jersey: Pearson Education Inc.
2. Maras, Marie Helen (2014). The CRC Press Terrorism Reader, Boca Raton,
Florida: CRC Press, Taylor & Francis Group.
3. Moise, Adrian Cristian; Stancu, Emilian (2017). Forensics. Methodological
elements for investigating offences. University course, Bucharest: Universul Juridic.
4. Ronczkowski, Michael R. (2012). Terrorism and organized hate crime.
Intelligence gathering, analysis and investigations, Third Edition, Boca Raton, Florida:
CRC Press, Taylor & Francis Group.
5. Turner, Jonathan E. (2011). Money Laundering Prevention. Deterring,
Detecting, and Resolving Financial Fraud, Hoboken, New Jersey: John Wiley & Sons,
Inc.
6. United Nations. United Nations Office on Drugs and Crime. United
Nations Counter-Terrorism Implementation Task Force (2012). The use of the
Internet for terrorist purposes, New York.
156 ADRIAN CRISTIAN MOISE
7. Directive 2017/541/EU of the European Parliament and of the Council of
15 March 2017 on combating terrorism, replacing Framework Decision
2002/475/JHA of 13 June 2002 on combating terrorism and and amending Council
Decision 2005/671/JHA, Official Journal of the European Union, 31.03.2017,
L88/6.
8. Council of Europe on the Prevention of Terrorism from the 16th of May
2005.
9. The Additional Protocol to the Council of Europe Convention.
10. The Romanian Criminal Code.
