International Journal on Criminology Volume 3, Number 1, Spring 2015 | Page 19

Terrorism and Criminal Law
Finally, to better deal with a situation in which terrorists act in isolation, or in “micro-cells,”
the aforementioned law of November 13, 2014, introduced a new article (art. 421-2-6) into
the Penal Code which criminalizes terrorist activity carried out by an individual at a much
earlier stage, before the feared criminal offense is committed, sometimes even at the stage of
“preparations for the preparation” of the offense. Demonstration of this new misdemeanor
requires a range of elements, both material and moral, to be meticulously handled so as
to avoid any censure on constitutional grounds. The terrorist activity has to consist of the
seeking, possession, acquisition, or fabrication of objects or substances liable to create a
danger to others. In addition to this material element, a second, more elastic one is necessarily
added: the gathering of information on places or persons such as to allow the carrying out of
an action in such places, or the causing of harm to such persons, or conducting surveillance
of those places or persons; undertaking training or study in the maintenance of weapons
or in any other kind of combat; the production or use of explosive substances, incendiary
devices, nuclear, biological, or chemical materials; the piloting of aircraft, or the navigation of
ships; habitually consulting one or more online public communication services, or holding
documents that directly incite acts of terrorism or defend such acts; spending time abroad
in the operational theater of a terrorist group. This preparation must finally be related to
the most serious forms of terrorism (willful attacks on life, willful attacks on the physical
integrity of persons, abduction and unlawful detention, hijacking of aircraft, ships or any
other means of transport, causing destruction, defacement, or damage intended to harm the
physical integrity of the person, or ecological terrorism).
In any case, whatever form it takes—traditional or modern—the offense is not
considered a terrorist act unless committed for a particular purpose: the offense must
in fact be an action “the purpose of which is seriously to disturb public order through
intimidation or terror.” Through the indiscriminate use of violence, terrorist activities aim
to gain concessions from the established government by creating a collective sense of fear
among the population. Looking beyond the direct threats that hang over the population, this
represents a threat to the very stability of public institutions, as André Malraux so brilliantly
demonstrated in his 1933 novel La condition humaine [Man’s Fate]. It is thus understandable
that terrorism should be subject to a regime of control that derogates from, or even bypasses,
common law.
II - The Legal Regime Relating to Terrorist Offenses
Since the law enacted on September 9, 1986, and modified on several occasions even
before the recent laws of April 14, 2011, December 21, 2012, and November 13, 2014, terrorist
offenses have had distinctive features in terms of both criminal law and criminal procedure.
Without renouncing the values of respect for democracy and human rights, the measures put
in place to fight terrorism in France have conspicuously been exceptional, specially adapted to
address the myriad dangers that hang over our fellow citizens. The regime established to deal
with terrorist offenses is notably ambivalent (A), and is now showing signs of administrative
overlap (B).
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