A brit Legfelső Bíróság döntése a R. v. Gul ügyben ([2013]
UKSC 64) igazi csemege. A legfelső bírói fórumnak arra kérdésre kellett választ adnia, hogy a brit
törvények szerint bűncselekménynek (terrorizmusnak) tekinthető-e egy nem-nemzetközi
fegyveres összeütközés során (pl. polgárháborúban) a kormány vagy nemzetközi
egységek ellen elkövetett fegyveres támadás:
“The appellant was born in Libya in
February 1988, but he has lived much of his life in this country and he is a
British citizen. In February 2009, as a result of executing a search warrant at
his house, police officers found videos on his computer uploaded onto various
websites, including the YouTube website. These videos included ones that showed
(i) attacks by members of Al-Qaeda, the Taliban, and other proscribed groups on
military targets in Chechnya, and on the Coalition forces in Iraq and in
Afghanistan, (ii) the use of improvised explosive devices ("IEDs")
against Coalition forces, (iii) excerpts from "martyrdom videos", and
(iv) clips of attacks on civilians, including the 9/11 attack on New York.
These videos were accompanied by commentaries praising the bravery, and
martyrdom, of those carrying out the attacks, and encouraging others to emulate
them.
The case for the prosecution was
that each of these videos constituted "a terrorist publication"
within section 2(3), which the appellant had "distribute[d] or
circulate[d]" within section 2(2)(a), and consequently he had committed an
offence by virtue of section 2(1), of the 2006 Act. The appellant's principal
defence was that, although he did not agree with the targeting of and attacks
on civilians, he believed that the use of force shown in the other videos was
justified as it was being employed in self-defence by people resisting the
invasion of their country.
At his first trial, the jury
acquitted the appellant on four counts and was unable to agree on two other
counts. A retrial in relation to those two counts (plus a further four counts
added by the Crown by way of a voluntary bill) took place in front of HH Judge
Paget QC with a jury at the Central Criminal Court. After the evidence,
speeches and summing up, the jury retired to consider their verdict in the
normal way on 22 February 2011. They then asked the judge for guidance on
certain questions relating to the meaning of terrorism, which, after hearing
submissions from counsel, he answered.
[…] Later the same day, the jury
asked a further question, which was in these terms:
“Please confirm that within
Iraq/Afghanistan now there are governments in place there cannot now be said to
be a 'conflict' and therefore no combatant exemption from what would otherwise
be a terrorist attack, ie IED on Coalition Forces. To simplify, would an IED
attack (ignoring self-defence) on Coalition Forces be a terrorist attack if
carried out in 2008/9?”
The judge answered this question,
after hearing submissions from counsel, in these terms:
“I have to apply the Terrorism Act and
the definition of terrorism which is part of English law, and the answer is
'yes, it would'. But it is ultimately for you to say”.
The jury then proceeded to convict
the appellant on five of the six counts. […] The judge sentenced the appellant
to five years' imprisonment, with appropriate allowance for time spent on
remand.
The appellant sought to appeal
against his conviction on a number of grounds, only one of which is relevant
for present purposes. That ground, which was expressed in various ways during
the course of his appeal, is ultimately embodied in the question which the
Court of Appeal certified to be a point of general public importance, namely:
“Does the definition of terrorism in
section 1 of the Terrorism Act 2000 operate so as to include within its scope
any or all military attacks by a non-state armed group against any or all state
or inter-governmental organisation armed forces in the context of a non-international
armed conflict?”
The Court of Appeal (Sir John Thomas
P, Silber and Kenneth Parker JJ) answered that question in the affirmative, and
also rejected certain other grounds of appeal, as well as refusing to interfere
with the sentence which the judge had imposed. Accordingly, the appellant's
appeal was dismissed – [2012]
EWCA Crim 280,
[2012]
1 WLR 3432.
The appellant now appeals to this
court contending that the answer to the certified question should be in the
negative”.
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