Different international instruments on the prevention and suppression of terrorism from the European Union and the Council of Europe task States with adopting new terrorist offences. At the same time, several provisions in these international instruments remind States of their obligation to fully adhere to their human rights obligations when implementing, interpreting and applying these new offences. Following these provisions, Belgium decided to insert a rather curious human rights clause in its Criminal Code. This article will critically examine this peculiar clause and the decision(s) made by the Belgian legislator. The key question is whether or not States should indeed also implement such human rights provisions in their criminal legislation, and if so, in what way they should best proceed. It will be argued that inserting such a specific human rights clause for one particular offence in a domestic criminal code might not only be superfluous, but could even have unforeseen, unwanted and hazardous effects.
OJ L 164, 22.6.2002, p. 1(hereafter ‘EU Council Framework 2002/475/JHA’).
OJ L 330, 9.12.2008, p. 21(hereafter ‘Framework Decision 2008/919/JHA’).
See Arbitration Court 13 July2005, No. 125/2005, Official Gazette 3 August 2005, pp. B.6.2-B.7.4 (principle of legality) and B.9-B.11.4 (discrimination) (the Court still carried the name Arbitration Court at the time).
Ct. Appeals Antwerp 7 February2008, No 7 FP 2007, pp. 149–159, available online at http://www.juridat.be.
See A. De Nauw, Inleiding tot het bijzonder strafrecht [Introduction to specific criminal law] (Mechelen: Kluwer, 2010) p. 8.
Arbitration Court 13 July2005, No. 125/2005, Official Gazette 3 August 2005, pp. B.7.2.
When drafting the Law of2013, it was observed that legislator(s) only disposed of a limited margin of appreciation, Parl. Doc. Chamber of Representatives 2012–13, 2502/004, 5. But as was indicated (see fn. 29), the Council of State rightfully observed that there was no duty to also implement Article 2 Framework Decision 2008/919/JHA.
It was only in1989, in the renowned Soering case, that the ECtHR said so for the first time, ECtHR, Soering v. the United Kingdom, Appl. No. 14038/88, Judgment, 7 July 1989, Series A No. 161.