![handle is hein.journals/utrecht1 and id is 1 raw text is: Terrorism and information sharing between the intelligence and law
enforcement communities in the US and the Netherlands: emergency
criminal law?1
John A. E. Vervaele2
1. Introduction
The 11-S and 1 1-M attacks in New York and Madrid and the murder of Theo van Gogh in
Amsterdam have raised many questions concerning the position of information of the
intelligence services and concerning the possible use by them of coercive measures for the
prevention and repression of terrorist offences. In many countries, the events have led to a
tide of criminal law legislation to restrain terrorism. This is not only the case in the US, with
its USA Patriot Act3, but also in the Netherlands4. In 2004 substantive criminal law was
adjusted in the Netherlands by means of the Terrorist Offences Act [Wet Terroristische
Misdrijven5], partly to implement the EU Framework Decision on Combating Terrorism. At
the end of 2004, a legislative proposal was submitted to extend the possibilities for
investigating and prosecuting terrorist offences6.
The criminal prosecution of terrorism and guaranteeing security in a state under the rule of
law give rise to fundamental questions concerning the constitutional freedoms and criminal
law guarantees in times of crisis. In this contribution, we concentrate on a special aspect,
which is, however, on the whole illustrative of these fundamental questions. The question of
what role the information gathered by intelligence services can and may play in the criminal
proceedings has become topical in the investigation, prosecution and trial of suspects and
accused of terrorist offences. After 1 -M, a counter-terrorism taskforce was established at
Europol7 with the aim of collating, analysing and enhancing information from intelligence
and police services. At the end of March 2004, the European Commission submitted a draft
third-pillar proposal concerning exchange of information and cooperation to combat
8
terrorism8. More important for our topic is the Communication from the Commission
1 A Dutch-language version of this article has been published in Panopticon, 2005/2, 27-52.
2 Professor of economic and financial criminal law at Utrecht University, Professor of European criminal law at the Europa College at
Bruges.
SJ.A.E. Vervaele, The anti-terrorist legislation in the US; inter arma silent leges?, European Journal of Crime, Criminal Law and Criminal
Justice, 2005/2, forthcoming.
4 For a recent overview, see E. Prakken, Naar een cyclopisch (straf)recht, Nederlands Juristenblad, 2004, 2338-2344.
5 Wet Terroristische Misdrijven van 24 juni 2004, Staatsblad 2004, 290, entered into force on 10 August 2004.
6 TK, 2004-2005, 29754.
7 This was also attempted after 11-S , but without much success.
8 COM (2004) 221 final, 29 March 2004.
http://Www. utrechtlawreview. org/ Volume 1, Issue 1 (September) 2005](ViewImageLocal?handle=hein.journals/utrecht1&div=1&collection=&method=preview&ext=.png&size=3)
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