Terrorismeforsættets kendetegn. En retsdogmatisk analyse af straffelovens § 114

Europe has been struck by several terrorist attacks, including the ones at the French venue the Bataclan and on the Norwegian island Utøya. Most Danes probably also remember the attack at Krudttønden and outside the Jewish synagogue in Copenhagen in 2015, and the terror threat against Denmark is still present. When it comes to the fight against terrorism, the punitive prosecution of the terrorists is very important. However, already during the making of the terror provision in section 114 of the Danish penal code, critique was expressed, e.g., of the lack of precision and clarity in the wording of the pro-vision.
The purpose of this thesis is to examine the terroristic intent in section 114. The thesis includes an analysis of section 114 and the provision’s connection to sections 114 b-e and will answer the research question: What characterizes the terroristic intent in section 114 of the penal code?
The thesis applies the legal dogmatic method to describe, interpret, and systematize applicable law regarding section 114 and the terroristic intent. The analysis of the terroristic intent is based on the written sources of law (the penal code) and on judgments in relations to terrorism, cf. sections 114 and 114 b-e.
The thesis is divided into three parts: Part I (chapter 1-3) introduces the purpose of the thesis, the research question, and the considerations regarding the methodological choices and use of sources of law. Furthermore, some fundamental elements regarding section 114 are being addressed.
Part II (chapter 4-11) analyzes the terroristic intent in section 114 of the penal code. Firstly, art. 2 (1) (b) of the 1999 Convention on Financing Terrorism and art. 1 of the EU Framework Decision on Combating Terrorism are analyzed in order to find contributions of interpretation to the wording and the scope of section 114. Afterwards, different limitations to the scope of section 114 are analyzed as well as the provision’s objective and subjective requirements. Thereafter, it is examined whether a group can have a terroristic intent, and if so, what an assessment hereof shall consist of. Furthermore, the importance of the motive in the assessment of the terroristic intent will be analyzed, and the scope of the intent will be clarified through an examination of the line between a non-concretized intent in sections 114 b-e and a (concrete) terroristic intent, cf. section 114. At the end of part II and in continuation of the prior analysis, an assessment of applicable law, which contains both legal dogmatic and legal policy consideration, will be made.
Part III constitutes the completion of the thesis. It is concluded that the terroristic intent in section 114 has several and very different characteristics. The thesis demonstrates that there is a large uncertainty regarding the practical implications of the limitations mentioned in section 114’s preparatory works, and that the perpetrator’s objective, due to the nature of the terroristic intent, often will be to commit terrorism, cf. section 114. It also demonstrates that the persons or groups, who commit, facilitate, or have the objective to commit the actions included in section 114, cf. sections 114 b-e, also must fulfill the terroristic intent as formulated in section 114, and that the traditional theoretical separation of intent and motive is hard or even impossible to maintain, in regard to the assessment of the terroristic intent in section 114. Finally, the analysis opens for the possibility – even though it is marred by uncertainty – that a group can have a terroristic intent.
Thus, some of the demonstrated characteristics constitute fundamental challenges in relation to the wording and application of the terroristic intent as well as to section 114 as a whole, while others of the demonstrated characteristics hopefully will be concrete contributions of interpretation in a case regarding section 114 and/or sections 114 b-e.
For a state under the rule of law, such as Denmark, it is extremely important that the battle within the judicial system occurs on a solid and legally secure foundation. The thesis, however, demonstrates that after 20 years of practical experience, there are (still) evident challenges regarding the clarity of section 114 and thus also with the predictability of the courts’ use of the section. Based on this – and with inspiration from Norwegian law – it is suggested to improve the present legal situation to change the wording and construction of section 114. Thus, it is suggested to insert a requirement of direct intent and to make the condition regarding the action’s suitability to inflict serious damage a part of the subjective requirement. Additionally, it is proposed to insert additional contributions of interpretations in the provision’s preparatory works and, finally, to move the power of prosecution from the Minister of Justice to the Director of Public Prosecutions.