készíti: Gellért Ádám
email/elérhetőség: gadam107@yahoo.com

“The only necessary for "evil" to triumph is for a few good men to do nothing”

2013. december 2., hétfő

5 év terrorizmust dicsőitő videókért

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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