Promoting a Terrorist Organisation: Support versus Recruitment of Members or Supporters
| Published date | 01 December 2007 |
| Date | 01 December 2007 |
| DOI | 10.1350/jcla.2007.71.6.491 |
| Subject Matter | German Federal Court of Justice (Bundesgerichtshof—BGH), 3rd Criminal Senate |
German Federal Court of Justice
(Bundesgerichtshof—BGH),
3rd Criminal Senate
Promoting a Terrorist Organisation: Support versus
Recruitment of Members or Supporters
Decision of 16 May 2007, Case No. AK 6/07 and StB 3/07
Following an investigation of the accused by the German Federal
Attorney-General, the investigating judge of the Federal Court of Justice
(‘BGH’) issued an arrest warrant for him.
The accused had allegedly distributed audio and video messages in an
Islamist internet chat-room from 2005 to 2006. In those messages, Al-
Qaeda leaders Bin Laden, Al-Zawahiri, Al-Muhadjer, and the late
Al-Zarqawi called for the killing of enemies as well as participating in
Jihad, and justified previous terrorist acts. The accused allegedly up-
loaded the messages to the internet, played them to others and offered
hyperlinks to access them. He was charged with 40 counts of supporting
a terrorist organisation and was placed in pre-trial detention. The ac-
cused moved for his arrest warrant to be quashed.
H
ELD
,
CHANGING THE WARRANT BUT DENYING RELEASE
,the warrant
could not be based on a charge of supporting a terrorist organisation.
The BGH ruled that some of the alleged conduct, if proved, amounted to
the recruitment of members and supporters of a terrorist organisation and
not actual support of such an organisation. The warrant on the different
charge was therefore upheld and the number of counts against the
accused was reduced. The BGH thus held that the endorsement of a
terrorist organisation and even the glorification of terrorist acts are not
criminal acts. Notwithstanding these amendments to the warrant, it
found that the accused had been legally detained prior to trial.
C
OMMENTARY
The judgment of the BGH is noteworthy because of its potential implica-
tions. By strictly adhering to the applicable legislation, the BGH nar-
rowed the scope of criminal liability under German law for conduct
similar to that of the accused. The court based its persuasive reasoning
on legislative reforms to the offence of supporting a terrorist
organisation.
To understand the BGH’s reasoning, it is helpful to review the rele-
vant statutes and revisions to them. A number of offences have been
incorporated into the German Criminal Code in order to tackle organ-
ised crime. Section 129 of the Criminal Code (‘Formation of Criminal
Organisations’) penalised mere affiliation to organised crime. In the
1970s, in response to Germany’s encounter with the leftist Red Army
Faction, s. 129a on domestic terrorist organisations was introduced, with
considerably harsher sentences. With the rise of transnational terrorism,
491
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