– Analysis by ECNL, published on 2 February and accessible here

In the aftermath of the deadly terrorist attack that hit Vienna in November 2020, the Ministry of Interior submitted a new draft “Anti-Terrorism Act” to the Austrian parliament by on 22 December 2020.

ECNL has analysed the provisions of this draft law with respect to their potential impact on civic space and civic freedoms, with a view to contributing to a public consultation on the draft law launched by the Austrian parliament.

ECNL is concerned that, in its current formulation, the draft law is not in line with international and European human rights standards on freedom of religion, freedom of expression and freedom of association.

There is no doubt that the protection of national security, public safety, public order and the protection of the rights and freedom of others are regarded as legitimate aims capable, in principle, of justifying restrictions on non-absolute rights such as freedom of religion and freedom of expression. This is reflected in the formulation and application of Articles 18 and 19 of the International Covenant on Civil and Political Rights (ICCPR), Articles 9, and 10 of the European Convention on Human Rights (ECHR) and Articles 10 and 11 of the European Union Charter of Fundamental Rights (EU CFR), read in light of Article 52(1) thereof. It is equally clear, however, that any such restrictions shall only be acceptable insofar as they are provided for by law and are necessary and proportionate to a legitimate aim pursued.   

ECNL’s concern refers, in particular, to the use of the concept of “religious motivated extremism” as a basis for criminalisation, as provided for in Article 1(3) and 1(8) of the draft law. These draft provisions, if passed, would introduce in the Criminal Code a new criminal offence concerning the creation, leadership, financing or support in any form of a “religiously motivated extremist association” or promotion of “religiously motivated extremist acts”. A new general aggravating circumstance of “religious extremist motives” would also be added to the Criminal Code, as an aggravating factor to be taken into account when sanctioning criminal offences.

According to ECNL, this would constitute a serious interference on the right to manifest one’s religion, the right to freedom of expression and the right to freedom of association which would not be in line with the principles of legality, necessity and proportionality, insofar as:

  • the concept of “religious motivated extremism” is not clearly defined and articulated by the law;
  • the interference with the rights of freedom of religion and freedom of expression goes beyond what is strictly necessary to achieve the objectives pursued;
  • the added value of the new criminal provisions with respect to the objectives pursued is questionable; and
  • there seems to be no justification for the punishment of the founder or leader of an association for a serious illegal act motivated by religious extremism of one of its members.

This would appear to run counter to human rights standards as enshrined in key international instruments Austria has signed and ratified, in particular, the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR).

Furthermore, given that this draft law is explicitly aimed at contributing to the implementation of EU rules on combating terrorism (Directive (EU) 541/2017) and on combating money laundering and terrorist financing (Directive (EU) 2018/1673), its provisions must also respect Austria’s obligations under European Union law and as such, they must be interpreted in light of the protections granted by the EU Charter of Fundamental Rights.

 

Download our full legal opinion on the draft law’s potential impact on civic space and the exercise of civic freedoms below: