Implementing the EU Directive 2017/541 on Combating Terrorism in a Sustainable Balance Between Efficiency, Security and Rights: The Case Study of the Participation to a Terrorist Group

Abstract EU Directive 2017/541 led to a sort of Copernican revolution in the definition of the system to combat international terrorism. There is not only the definition of the guidelines for a coherent system to combat the phenomenon, but it is explicitly envisaged the need for a compliance with fundamental freedoms, breaking the widespread idea that security and rights cannot coexist in a balanced system. The analysis of the national implementation of international and European legal framework returns the image of domestic systems strongly influenced by the past forms of terrorism experienced at a domestic level. From this point of view, the case-study of the definition of the crime of participation in a terrorist group in the Italian system appears to be paradigmatic of the aforementioned need to find a sustainable balance between the effectiveness of the response and the protection of fundamental rights and guarantees. The experience in the field of political terrorism but above all of mafia-type associations allowed doctrine and jurisprudence to rely on an already mature elaboration of the constitutive elements of the crime even if it was necessary to evaluate the peculiarities of the terrorist phenomenon. Unlike the mafia-type association, the terrorist group is much more liquid as it is not based on a rigid structure divided into roles but on networks active at transnational level and resulting from the connection between different autonomous cells. As a result Italian case law, not differently from what happened in other national systems, has been oriented to a strong enhancement of the psychological element in the forms of personal adherence to the ideology of Jihad and to a wide application of the crime of participation even in presence of hardly appreciable contributions from a material point of view. These forms of extensive interpretation – also derived from guidelines developed in the context of mafia-type associations and forms of so-called external conspiracy – has not only driven to forms of “subjectivization” of the crime but made participation in a terrorist group the attractive black hole of all minor hypotheses of non-associative offenses. Through the reference to the Italian experience and some solutions adopted by jurisprudence, this article aims at assuming how the use – or better the history repeating – of the classic causation model could be a useful solution to recover the legality of the crime of participation and to restore autonomous space for the application of the minor hypotheses already provided by the same Directives 541/2017 in a sustainable balance between collective security and protection of fundamental principles.