In Austria, a package of measures was brought through the legislative process last week. Though some external observers have singled out Austria for criticism, they are ignoring the broader context. Challenged by religious extremism, states all across Europe are facing the question of whether the legal instruments currently available are sufficient to counter the dangers to free societies. A number of these countries, and politicians of every political stripe, have decided they are not, and, as a result, moved to reform the law. Austria is one of them.
That said, it is true that in Austria there is a specific impetus to action. The Islamic State (ISIS) terrorist attack in Vienna on 2 November 2020 shook Austrian society. Just a few days after the attack, the government, made up of the liberal-conservative Austrian People’s Party (ÖVP) and the leftist Green Party under Chancellor Sebastian Kurz (ÖVP), decided changes were needed to adapt to the new challenges.
The current package, Der Gesetzestext des Terror-Bekämpfungs-Gesetz (TeBG), represents only part of what is intended to be a series of measures, some already implemented, some yet to come. The current catalog of measures primarily includes changes in criminal law, as well as changes in criminal procedure law, in the penal system, and the organization of courts. Justice Minister Alma Zadić, a refugee from Bosnia and Green Party member, has already announced another package, which is currently still being assessed.
What Is Planned, What Is Changing?
A key part of the new measures is a crackdown on money laundering and criminal financial flows, with stiffer and more comprehensive criminal penalties introduced. Some offenses now carry mandatory minimum penalties; others have had their range of penalties extended.
For example, state access to assets is expanded if the accused is suspected of having obtained those assets through criminal acts. Judges are also given the option of confiscating assets if the accused cannot be prosecuted or convicted for the offenses. This expanded judicial discretion allows room for maneuver in the space of uncertainty between verifiably legal funds and assets whose origin the accused cannot or will not account for or explain.
The recording of a foreign connections has been tightened and amendments to the burden of proof standards with regard to the circumstances of the offense mean that middlemen no longer escape punishment. Additionally, the list of assets has been updated to include virtual currencies.
Religious Extremist Motivation As An Aggravating Factor in Sentencing
The Criminal Code is being reformed to close a loophole. The nature of an extremist movement is now to be defined so as to encompass sects that advocate violence and the creation of a religious state to replace the legal government. Creating such a religious extremist movement leading to illegal acts will become punishable, and the illegal acts will be punished more severely. The law is very clear that former members of any such group, who separated from it before it engaged in illegal acts, are in no legal jeopardy.
It is important to be equally clear what is not included under this law. It will not be illegal to found and work for an Islamist party that seeks to change the current governing system in Austria to a religious model guided by the shari’a—provided the group does not carry out any illegal acts.
Electronic monitoring of a person who is on parole will be provided for. All helpers and carers will be expected to report progress or any relapse into criminal behavior. An extension of the trial period is possible, though the law is carefully circumscribed: electronic surveillance may be imposed for a maximum of ten years.
Smaller additions to the criminal procedure law lower the threshold for the involvement of the public prosecutor’s offices and enable the presentation of uncooperative lawbreakers during the probation period or in the event of non-compliance with court orders. Release conferences are to be introduced in the penal system. Special case conferences should be convened if residual sentences for terrorist offenses are to be suspended.
Further measures shall include the withdrawal of a driver’s license as a sanction option, instructions on behavior and, in justified cases, the withdrawal of Austrian citizenship for people with dual citizenship.
Finally, there are changes to the Islam Act, which in 2015 specifically regulated the relationship between the Islamic religious communities and the Austrian state, intending to increase transparency. In the same spirit, the directory of employed imams and preachers will now have increased disclosure requirement for finances and contacts.
Judging the new legal measures will depend ultimately on how they are applied.
In the run-up to their enactment, there was criticism from religious associations and the political opposition. The political criticism was aimed specifically at individual measures, not at the reforms per se; there is a broad consensus in parliament on the need to make changes and the broad shape the changes should take. The religious opposition is a different matter.
The Islamic Religious Community in Austria (Islamische Glaubensgemeinschaft in Österreich, IGGIO), an umbrella organization that also has a number of problematic members, called parts of the laws “discriminatory”. There was little surprise about this. The Austrian Bishops’ Conference took issue with the introduction of the term “religious motivation,” worrying that it could see all religious people come under general suspicion and be “stigmatized”. This, too, was somewhat predictable. What was not necessarily foreseeable was that the Bishops’ criticism should be even more broad than that of the IGGIO. The Bishops’ wanted the designation of religiously motivated terrorism, with all the heightened aspects that entails, applied to fanatics who were anti-religious, even if they were not religious themselves. This is probably why this idea was not taken into account.
Legalists claim that terror is not the property of one religion. That’s true. However, it is also true that terrorists can have a religion and that in the last few years they have mainly had one. Recognizing Islamic terrorists—what they believe, how that is different from other extremists, understanding that their focus and incentive structure is based on rewards in the next world—is an important starting point in dealing with this challenge. The tightrope to walk is to understand the terrorist and his religious motivations so as to be able to thwart the dangers he poses—without discriminating against all Muslims. The legalists’ denial of any religious motive is not helpful.
Austria’s Anti-Terror Laws In Comparison
Austria is not unique in seeing a need to grant state institutions more defense rights, and Austria is not even unique in making this realization in the shadow of an Islamist terrorist attack.
In 2015, Tunisia tightened its anti-terrorist laws after ISIS attacks in Tunis and Sousse. Only this April, two extremists were killed during Tunisian police operations. During one of the missions, a woman blew herself up with her younger child, still a baby.
Morocco, which has one of the most sophisticated counter-extremism policies in the Arab world, was an early mover in tightening up the legal situation with respect to terrorism—arguably too far, according to some human rights organizations. At the same time, Morocco has shown remarkable proficiency against terrorism at home and has been a provider of crucial intelligence that has prevented attacks to France, Germany, and Spain (that we know about).
The toughest anti-terror law in Europe was passed in Switzerland in June. The “Bundesgesetz über polizeiliche Massnahmen zur Bekämpfung von Terrorismus” (PMT) is an intentionally broad legal instrument. Even the spreading of “fear and terror” can be seen as a terrorist activity. Personal data protection can be partially canceled. Reporting obligations, freedom-restricting residence requirements, and contact bans can be ordered by courts. The measures have a built-in review mechanism: they can only be imposed for six months at a time, and the person subjected to them can request a review at any time. A number of other laws related to terrorism were edited at the same time.
At the other end of the spectrum is Germany, where the sharpest legal measure, the temporary forfeiture of civil rights, is already provided for, in Article 18 of the Basic Law (Grundgesetz), yet has never been used. Despite the safeguards in place to ensure Article 18 is only used in conditions of strict necessity, Germany is too hampered by her own history to invoke such measures even during a devastating terrorist campaign, such as that of the Red Army Faction or “Baader-Meinhof Gang” in the 1970s, a Soviet-supported Communist group that engaged in vast criminality, as well as terrorism. Whether Germany can afford to continue this path is an open question. The dangers are mounting and the minor legal adjustments to the Criminal Code of recent years may be insufficient.
Even if the framework conditions for terrorist activity are different in various countries, the challenges are similar—the terrorist methods are the same, as are their intentions, namely to achieve political change by violence. The advantage that constitutional states have is that they can trial a variety of approaches, discarding what does now work, while passing on to fellow democracies that which is successful. Terrorism is an international phenomenon, after all, and so should counter-terrorism be: best-practices can cross international borders, and mistakes made in one place need not be repeated. In this way, terrorists can be fought with the minimal restriction on civil and human rights. The proof will be in the practice, but on paper Austria seems to be on the right track.
European Eye on Radicalization aims to publish a diversity of perspectives and as such does not endorse the opinions expressed by contributors. The views expressed in this article represent the author alone.