New McCarthyism or rule of the law: the dilemma of radicalisation

An article by Sergio Bianchi

The policies and practices aimed at preventing radical phenomena are profoundly changing the landscape of the EU Justice, impacting on the overall governance of security, but also on the roles of police forces, intelligence agencies and judiciary within prison and probation. Since 2005, practices that traditionally belong in the field of social policies are now under the umbrella of security and antiterrorism due to their ideological and religious components. The ancient borderlines between separate jurisdictions and powers, keys, doors and guardians, which guaranteed a fair system of checks and balances, tend to fall in the new model of ‘prevention policing’, which seems to have freed itself from all the complexes that historically linked this concept to totalitarian regimes and ideological repression.

This has a whole series of practical and political consequences.

Firstly, legal and procedural consequences. Precisely what is meant by prevention and, more specifically, the prevention of radicalisation – i.e. prevention of an ideological nature, in an area of pre-crime, halfway between the political and the religious – remains the crux of the matter, just as it remains to be understood (and regulated) who can and should activate practices to prevent radicalisation, with which procedures, and which are the tasks of the various agencies involved. Finally, how can the re-cognitive functions of judges be exercised in a prevention procedure with respect to purely potestative functions.

Secondly, consequences on civil and fundamental rights. With the sudden entry of radicalisation in prison practices as a theme of anti-terrorism, this specific type of religious, ideological and behavioural information derived from prison observations departs from the ‘social space of rehabilitation’ and, like other confidential information, becomes administrative security data. How a Muslim prays or dresses, or what a Muslim thinks of foreign policy, is no longer just a sociological fact for the rehabilitative team to work with, but becomes ‘investigative or pre-investigative information’. His praying and his political judgments do not end up in the prisoner’s file, as is the case with the other prison observation data managed by the re-socialisation teams, but is managed separately in appropriate IT DBs, in the context of targeted applications aimed and set up for security procedures.

Moreover, contrary to judicial information or the hypotheses of crime, the data on radicalisation do not end up on the prosecutor’s table, because obviously the crime is missing: there is generally only the risk index according to new, vague prevention criteria defined by different Risk Assessment tools (VERA2R, ERG22+, etc.). The decisions on profiling, with all the related implications as regards surveillance, prison allocation of inmates and security measures, are adopted according to intelligence profiling models by central police bodies with new functions of an ‘intelligence-led police’ according to American and Anglo-Saxon models, and no longer by the judges and the multidisciplinary rehabilitation teams, as in the traditional penitentiary models.

Several general risks are connected to this approach, which should be taken into consideration by the EC, EP and the Council:

  1. Inconsistency with the EU legal framework. The cornucopia of personal and patrimonial preventive practices to counter radicalisation, terrorism, cyber and organised crime, recently brought to the forefront a creeping tension between security needs, often interpreted through administrative measures, from one side, and the provisions of Directive 2014/41/EU (European Investigation Order) and Council Framework Decision 2002/584/JHA (European Arrest Warrant), on the other side, which are requiring a high level of procedural jurisdictionalisation of the penal procedures and an enhanced involvement of the judiciary functions.
  2. The growing use of security preventive measures run the risk to expose prison policies and practices to a high level of desocialisation effects, generated by the difficulties to combine restrictive security measures with the needs of reintegration and rehabilitation for inmates, which is one of the missions of the prison systems. The compatibility of strict security preventive measures based on suspects against the Council Framework Decision 2008/909/JHA, 2008/947/JHA and 2009/829/JHA is an example, which explains why inmates under the radicalisation radar are largely deprived of their rights, they are not transferred and generally don’t benefit of alternative measures.
  3. Finally, the compatibility with the ECtHR jurisprudence on prevention risk to be jeopardised. The hallmark of the deradicalisation models risks becoming (1) the indeterminacy of the social risk criteria, tainted by prejudice, politicisation or specific ignorance, which (2) generates unpredictability in the monitored subjects/communities, which they often do not even understand, given their cultural distance, and therefore (3) they open up wide spaces to the arbitrariness of the administrative authorities in the practices of prevention, (4) above all in the absence of judicial supervision.

Under Directive 2017/541/EU, the Union and its Member States have significantly expanded the scope of ‘terror-related crimes’ to all so-called preparatory acts. The extension of these penal measures in such a flexible form probably allows the introduction of ‘factual elements’ typical of criminal processes in prevention procedures. This element could make all the work, effort and investment in ideological prevention, on which the EU and its agencies concentrate today, superfluous.

By bringing the phenomenon of prevention back into an equal relationship with criminal law – with clear procedures derived from the ECtHR’s jurisprudence and the ‘Stockholm’s Roadmap’, as well as other European directives such as EIO – European security systems can still balance security and justice, prevention and law.

This is what we need to prevent radicalisation.

Click on the link to read and download the article ‘Radicalisation: no prevention without juridicalisation‘.

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