XVIiI. Law of 21 July 2010 repealing and replacing Law of 26 July 2005 on counter-terrorism

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1 PRESIDENCY OF THE REPUBLIC ISLAMIC REPUBLIC OF MAURITANIA HONOUR FRATERNITY - JUSTICE SANCTIONED BY: - D.G.L.T.E.J.O Law of 21 July 2010 repealing and replacing Law of 26 July 2005 on counter-terrorism Article one: Terrorism generates violence and intolerance. It threatens the stability of the state and of the institutions, the security of persons and goods and is a danger to the vital interests of the Nation. Inspired from the religious and moral teachings of Islam and according to the democratic principles stipulated in the Constitution, this law guarantees for the society the right to: - a life lived in peace, security and tranquillity, far from anything that could prejudice its stability or destabilise its institutions; - reject all forms of violence, fanaticism, racial segregation and terrorism that threaten peace and stability in the society. The state, starting with the national community, fully assumes responsibility for its contribution to the effort of the International Community in fighting all forms of terrorism and interdicting the related funding sources, as part of international, regional and bilateral agreements ratified regularly by the Islamic Republic of Mauritania. Chapter I: Terrorist acts Article 2: This law applies for terrorist crimes. Article 3: For the purposes of this law, a terrorist crime is a crime specified at articles 4, 5 and 6 below which, by its nature or context, can seriously affect the country and is perpetrated intentionally for the purpose of seriously intimidating the population or abusively forcing the Public Institutions to carry out actions they must not or refrain for doing what they should, of perverting the fundamental values of society and destabilising the constitutional, political, economic or 1

2 social structures and/or institutions of the Nation, to damage the interests of other countries or an international organisation. Article 4: A terrorist crime is, subject to the conditions of article 3 above: An attack against the internal and/or external security of the State; 1. An intentional attack against life, integrity or freedom of persons, as well as kidnapping or abducting persons; Computer crime (cyber-crime); 2. Crimes related to the security of air or sea navigation or land transports; 3. The design, manufacture, holding, transport, sale or illegal use of weapons, explosives, ammunitions, explosive substances or engines manufactured using such substances, 4. The manufacture, holding, acquisition, transport or supply of nuclear, chemical or biological weapons, the use of nuclear, chemical or biological weapons, and research and development of weapons of mass destruction; 5. Concealing means related to any of the crimes specified at articles 5 and 6 below; 6. Crimes of money laundering and crimes related to the monetary laws and changes in the economic laws in relation with a terrorist crime; Article 5: The following are also terrorist crimes, subject to the conditions of article 3 above: 1. The destruction or massive damage to industrial, economic or social infrastructure, equipment or installations, or intentional causing an infrastructure, a transport system or a public or private property to be flooded, having as effect danger to human lives or financial losses or considerable material damage; 2. The spread of dangerous substances that jeopardise human lives; 3. The disturbance or interruption of the supply of water, electricity, hydrocarbons, telecommunications or any other financial natural resources or public services that endangers human lives; 4. The spread in the air, soil, waters, including territorial sea waters, of a substance that endangers human or animal health or damages the natural environment; Article 6: The following are also terrorist crimes, subject to the conditions of article 3 above: 1. The deed of establishing, leading or adhering to a group or entity created in order to perpetrate terrorist acts or preparing, consisting of one or several material deeds, of terrorist acts as mentioned in the previous articles, or making terrorism, even incidentally or individually, a means to reaching one s goals; 2. Receiving training in the national territory or abroad, in order to perpetrate a terrorist act in the national territory or abroad; 2

3 3. Recruiting or training, inside or outside the national territory, a person or a group of persons in order to perpetrate a terrorist act, inside or outside the country; 4. Using the national territory, a ship under the Mauritanian flag or an aircraft registered under the Mauritanian law to perpetrate a terrorist crime against another State, its citizens or its interests, or against an international organisation, or to carry out preparations; 5. Procuring weapons, explosives, ammunitions or other materials or equipment of the same nature for a person, a group or a faction in order to perpetrate terrorist crimes, placing skills or experience in their service or providing, directly or indirectly, information for the purpose of perpetrating a terrorist crime; 6. Funding a terrorist enterprise by providing, collecting or managing funds, values or goods of any kind or providing advice for this purpose, with the intention of having such funds, values or goods used or knowing that they are used, fully or partially, to perpetrate one of the terrorist acts specified in this chapter, irrespective of whether that act takes place or not; 7. Calling, through any means, to perpetrate terrorist acts, inciting ethnic, racial or religious fanaticism or using a name, a term, a symbol or any other sign to support an organisation classified as terrorist under the laws of Mauritania, any of its leaders or any of its activities; 8. Providing a meeting place for the members of a group, faction or for persons who have connections with terrorist crimes, to help them find accommodation, hiding them, helping their escape, providing shelter, ensuring their impunity or benefitting from their deeds. 9. Concealing by any means, directly or indirectly, or facilitating the concealment of the true origin of movable or immovable assets, income or profit of natural persons, under any form, in relation with terrorist persons, groups or activities, or accepting deposits under false names or integrating or concealing their integration into other assets, all of the above irrespective of the legal or illegal origin of such goods; 10. The deed of: - failure to immediately report to the competent authorities the deeds, information or details related to the preparation or perpetration of terrorist crimes of which they had knowledge, even under the obligation to keep the professional secret; - false alarms with malicious intent. 11. Capturing or hijacking any transport means; 12. Threatening to perpetrate any of the crimes stipulated in this law. For the purposes of these provisions, group or faction shall mean a structured association of more than two persons, established in time, acting together to perpetrate terrorist crimes as stipulated by this law. Article 7: Terrorist crimes are not deemed political crimes in any case. 3

4 Chapter II: Punishments Article 8: Any person who perpetrates one of the crimes specified at article 4 shall be punishable by fifteen (15) to twenty (20) years of imprisonment and a fine of 10,000,000 (ten million) to 20,000,000 (twenty million) ouguiya, without affecting the application of a greater punishment as stipulated by the criminal law. Article 9: Any person who perpetrates one of the crimes specified at article 5 shall be punishable by twenty (20) to thirty (30) years of imprisonment and a fine of 20,000,000 (twenty million) to 30,000,000 (thirty million) ouguiya, without affecting the application of a greater punishment as stipulated by the criminal law. Article 10: Any person who perpetrates one of the crimes specified at article 6 shall be punishable five (5) to fifteen (15) years of imprisonment and a fine of 5,000,000 (five million) to 15,000,000 (fifteen million) ouguiya, without affecting the application of a greater punishment as stipulated by the criminal law. Article 11: Any person that attempts to perpetrate any of the crimes stipulated in this law shall be punishable by the same punishment as stipulated for that crime, unless the circumstances that prevented it are independent of their will. Any person that divulges or discloses to another person any information that can obstruct an ongoing investigation in relation with a terrorist crime shall be punishable by one (1) to five (5) years of imprisonment and a fine of 1,000,000 (one million) to 5,000,000 (five million) ouguiya. Article 12: The proceeds obtained from the financial or asset penalties brought against persons that are judged guilty of terrorist acts shall be allocated to a compensation fund for victims of terrorist acts and other crimes. The rules for the organisation and functioning of this fund are defined by a decree. Article 13: Legal persons can be declared responsible for terrorist acts stipulated by this law. The punishments applied to legal persons are: 1. A fine, equal to five times the amount stipulated for natural persons in the provisions against the respective crime; 4

5 2. Prohibiting the activity during which or with the occasion of which the crime was perpetrated. Article 14: Natural or legal persons that are declared guilty of terrorist acts shall also receive the additional penalty of full or partial confiscation of goods, regardless of their nature, movable or immovable, divided or co-owned. Article 15: In case of repeat offenders, the punishment stipulated for that crime shall be doubled. Article 16: The maximum punishment is given if: - the crime is committed to persons assigned to law enforcement, regardless of whether they are the main perpetrators or accomplices; - the crime is committed by members of the security forces, the armed forces personnel or customs officers, regardless of whether they are the main perpetrators or accomplices; - the crime is perpetrated by persons entrusted with the management or supervision of the respective buildings, places or services, persons employed there, regardless of whether they are the main perpetrators or accomplices; - the crime is perpetrated in association with a child. Article 17: The death penalty can be applied if the deeds result in the death of one or several persons. Article 18: Minors that perpetrate one of the terrorist crimes stipulated in this law shall receive half the punishment for majors. The maximum prison time for a minor cannot exceed 12 years. Article 19: - A member of a group or faction that plans a terrorist act shall be exempt from punishment if, by warning the administrative or judicial authority, the crime was avoided and/or the perpetrators were identified. - the Republic Prosecutor has the discretion to suspend the judicial inquiries against any persons that reports, before being arrested by the authority, that they have renounced terrorism and rejected it, have withdrawn from any terrorist group or faction, both inside or outside the country, provided they have not perpetrated a crime that is punished by HAD. Such statement may be made by any means. The interested person must surrender to the competent authorities. 5

6 The Republic Prosecutor may prescribe alternative measures for that persons, such as: - making a public announcement of their new commitment; - the undertaking to notify the authorities of any change of residence and inform them in advance of any activity, for a period of three months. This commitment shall not suspend any inquiry the prosecutor s office may commence if it is proven that the person has not acted in good faith. Chapter III: Jurisdiction and Procedure Article 20: A counter-terrorism unit is established among the magistrates of the Nouakchott prosecutor s office. The manner in which members are appointed in this unit shall be as for the position of magistrate. A counter-terrorist investigation unit is established at the Wilaya court of Nouakchott. Investigation judges of this unit are appointed according to the regulations for magistrates. The Criminal Court of Wilaya Nouakchott has the exclusive jurisdiction over terrorist crimes. This court may also judge in a hearing outside the territory. The manner in which the two units are organised and function shall be determined by a decree. Article 21: The counter-terrorism investigation unit rules on the arrest and parole, as the case may be. Article 22: The investigation unit may order, upon request from the Republic Prosecutor, a sequester on the movable or immovable assets of persons indicted for terrorist acts, under the suspicion of using said goods to prepare or perpetrate terrorist acts or if they are the product of such crimes. Article 23: The alleged perpetrators of terrorist crimes can be placed under arrest for a period of fifteen working days, calculated according to the provisions of the Criminal Procedure Code. This period may be extended twice following a written authorisation from the Republic Prosecutor. Article 24: Officers of the judicial police attached to the Wilaya Court of Nouakchott, competent to establish terrorist crimes, shall carry out their duties in the entire national territory. Article 25: The officers of the judicial police shall have the obligation to immediately inform the Republic Prosecutor to which they report of any terrorist crimes they have knowledge of. 6

7 Republic Prosecutors attached to the Wilayas Courts shall have the obligation to promptly forward the aforementioned reports to the Wilaya Republic Prosecutor or Nouakchott, in order to determine how to proceed further. Article 26: For the purposes of the inquiry, officers of the judicial police shall be authorised, under an order of the republic prosecutor or a ruling of the investigation judge, acting by rogatory commission, to tap the telephone calls, electronic messages and other forms of correspondence of the suspects or any persons connected to them. Such procedures may only be used under written order from the Republic Prosecutor or by a ruling of the investigation judge. Only suspects of terrorist acts against whom there are indications of evidence may be subjected to this procedure. Only communications in connection with the suspected deeds may be subjected to this procedure. It is forbidden to use information regarding the private lives of the persons. Any persons that breaches the provisions of the previous paragraphs in this article shall be punishable by six months to two years of imprisonment, especially for proven abuse; Officers of the judicial police may be authorised under the same terms as the previous paragraph to go under cover in terrorist organisations and criminal organisations that have a connection with a terrorist enterprise. The evidence obtained by such methods shall be recorded in the special protocols attached to the procedure and shall be used as evidence in the competent jurisdiction. Article 27: Competent officers of the judicial police shall be authorised under an order of the republic prosecutor or an order of the investigation judge acting by rogatory commission, to carry out home searches if it is presumed that there are clues in connection with a terrorist act. These searches may be carried out at any time. Only suspects of terrorist acts against whom there are indications of evidence may be subjected to this procedure. Only objects that are connected to the crime may be seized. Any persons that breaches the provisions of the previous paragraphs in this article shall be punishable by six months to two years of imprisonment, especially for proven abuse; Article 28: Protocols of the judicial police in connection with terrorism cases, prepared in accordance with articles 22 and 23 of the criminal procedure code may only be challenged for form in case of forgery of public acts. The evidence contained in the judicial protocols shall be evaluated by the magistrates of the competent courts. 7

8 Article 29: The Republic Prosecutor of the Wilaya Court of Nouakchott has the exclusive competence to start and carry out the public action in connection with terrorist crimes. Article 30: Republic Prosecutors of Wilayas Courts other than the Wilaya Court of Nouakchott, can carry out urgent acts of the preliminary inquiry to establish the crime, gather evidence and investigate its authors. They must also receive, denouncements, complaints, protocols and reports. They briefly question the accused starting with their first presentation and decide, as the case may be, to extend the arrest and make them available as soon as possible to the Republic Prosecutor of the Wilaya Court of Nouakchott, together with the reports, protocols and supporting documents. Article 31: The Republic Prosecutor of the Wilaya Court of Nouakchott must promptly notify the superiors in the prosecutor s office. They must start the procedure in case of flagrante delicto, or request an investigation to be opened. Article 32: The accused s testimony before the Republic Prosecutor or the investigation judge is a judicial testimony under this law. Article 33: From the moment when the Republic Prosecutor s appeal against the refusal to arrest the accused for terrorist crimes of the investigation judge and upon request from the General Prosecutor of the appeals court, the president of the arresting court orders the accused to be held until the competent court rules on the prosecutor s appeal. The Republic Prosecutor s appeal shall suspend the execution of first instance decisions against the Order for non-judgment or delay for a period that cannot exceed two months. Article 34: Materials, items, equipment and goods of any nature seized for preparing or perpetrating the terrorist crimes shall be confiscated by the judgment. A part of the proceeds of such confiscation shall be allocated to counter-terrorism bodies. The practical methods by which the confiscated products are to be distributed shall be determined by a decree. Article 35: The public action for terrorist crimes is not subject to the statute of limitations. 8

9 Article 36: Necessary measures shall be taken to protect the persons entrusted by the law with the establishment and punishing terrorist crimes, especially magistrates, judicial police officers and public servants. The protection measures also apply to auxiliary personnel, witnesses and all persons that notify the competent authorities in any way. The aforementioned measures shall also extend, as the case may be, to the family members of the persons specified in the two previous paragraphs and any of their closed persons that may be a target. The provisions of this article shall be detailed in a decree. Article 37: If there is imminent danger, the investigation judge or the president of the court, as the case may be, and if the circumstances require it, may order the inquiry to be carried out or the hearing to be held in a different place than the usual one without affecting the accused s right to defence. They must carry out the accused s interrogatory and the hearing of any person whose testimony is deemed useful by using adequate visual or audio communication means, without requiring their personal presence for the hearing. Adequate measures shall be taken as not to disclose the identity of the persons that are under protection measures. Article 38: The persons specified in the third paragraph of the previous article may, if called to testify with the officers of the judicial police, of the investigation judge or any other judicial authority, to choose their residence at the Republic Prosecutor. In this case, their identity and real address are recorded in a confidential register, numbered and sealed, held by this purpose by the Republic Prosecutor of the Wilaya Court of Nouakchott. Article 39: In case of imminent danger and if the circumstances require it, all information that may identify the persons that took place in the establishment and punishment of the crimes under this law, especially magistrates, officers of the judicial police and public servants, may be mentioned in individual protocols, recorded in a file that is kept separate from the initial file. The measures specified in the previous paragraph apply equally to the auxiliary judicial personnel, victims, witnesses and all persons that provide information to the competent authorities in any way. The identity of the persons listed in the two previous paragraphs and any mention that could identify them, such as their signature, are recorded in a confidential register, numbered and sealed by the Republic Prosecutor, held especially for this purpose. 9

10 Article 40: The accused or their counsel may, within ten days of becoming aware of the content of the statements given by the persons specified at paragraph two of the previous article, request the judicial authority to reveal their identity. The judicial authority may order the aforementioned measures to be lifted and the identity of the involved person to be revealed if it estimates that the request is well-founded and there is no reason to fear for the life or goods of that person or their family members. The decision to reject or accept the request is not subject to appeal. Article 41: The Wilaya Criminal Court of Nouakchott has the competence to recognise terrorist crimes perpetrated outside the national territory if: - they are perpetrated by a Mauritanian citizen; - the victim is a Mauritanian national; - the crimes are committed against Mauritanian interests, - the crimes are committed by a foreigner or stateless person with usual residence in Mauritania, against foreign persons or foreign interests, or by a foreigner or stateless person who is found in Mauritania and the extradition of which has not been requested by the competent foreign authority before the competent Mauritanian jurisdiction issues a final judgment against that person. Article 42: In the cases specified in the previous article, the public action is not subject to whether the deeds that are investigated are incriminated by the laws of the State where they were perpetrated. Article 43: The Public Ministry has the exclusive competence to start and exercise the public action resulting from terrorist crimes perpetrated abroad. Article 44: The public action cannot be started against perpetrators of terrorist crimes if they prove that they have been subject to a final judgment abroad, and if convicted they carried out their sentence entirely or have been subject to amnesty or pardon. Article 45: Terrorist crimes can result in extradition in accordance with the provisions of the Criminal Procedure Code and Mauritania s international commitment, if perpetrated outside the national territory by a citizen from outside Mauritania against a foreign citizen or foreign interests or a stateless person and the perpetrator is located in Mauritania. 10

11 Extradition shall only be granted if there is a request by a competent State under its domestic laws, connected to Mauritania with a mutual judicial assistance agreement, Chapter IV: Final Provisions Article 46: No provisions in this law may be construed as reducing or preventing the fundamental rights and freedoms specified in the Constitution, and especially the right to defence. Article 47: All contrary previous provisions are hereby repealed, in particular those of Law of 26 July Article 48: This law shall be executed as a State law and published in the Official Gazette of the Islamic Republic of Mauritania. B. DEVELOPMENT OF MORE FLEXIBLE FORMS OF SPECIALISATION AROUND THE NOTION OF COMPETENCE UNITS The movement for specialisation is taking new forms, defined by flexibility and a logic of concentration of the means. Instead of creating new jurisdiction in the entire territory, the preference is now to regroup litigation in a lower number of high instance courts. The success of this policy requires a good estimation of the critical size of jurisdictions and ensuring the necessary means for them. 1. The Counter-terrorism Unit In 1986, France acquired a specific legal arsenal to fight against terrorism following the wave of attacks perpetrated in its territory by Middle-Eastern terrorist. Thirteen criminal acts claimed by a certain committee for solidarity with Arab prisoners had caused the death of eleven persons and 275 wounded. Law of 9 September 1986 defined for the first time the notion of a terrorist act and especially attached special procedural rules to it in order to strengthen the investigators powers. 11

12 This law was amended several times, in March 1994 when the new criminal code came into force, in January 1995 to extend the statute of limitations for public action and punishments, in July 1996 to extend the scope of crimes and in December 1996 to authorise, under strict conditions, night-time searches. Following the attacks of 11 September 2001 in the United States, Law of 15 November 2001 on day-to-day security consolidated the French legal arsenal for effective counter-terrorism: - allowing vehicles to be searched by officers and agents of the judicial police by request of the Republic Prosecutor; - authorising searches during preliminary inquiries, under certain conditions; - allowing security agents to search luggage and carry out security body searches; - regulating how communication data is kept with the obligation for telecommunications operators to keep certain information for investigating crimes; - authorising hearings, interrogatories and remote confrontations by using adequate telecommunications means. Due to the report presentation date being moved up, the information mission was unable to take part in the counter-terrorism unit in Paris. We will only mention here the main elements of its functioning. a) Concurrent competence of local jurisdictions and Paris jurisdictions Articles to of the criminal procedure code provide for the centralisation of terrorism cases in Paris. For this purpose, the Republic Prosecutor, investigation judges and Parisian jurisdictions have received concurrent competence with the one resulting from common law rules (the place where the crime is perpetrated, the residence of one of the persons suspected to have taken part in the crime or the place where one of such persons is arrested). The goal was not to dispossess territorial jurisdictions, but to create an additional competence. The Law of 9 September 1986 conferred no precedence to Paris jurisdictions. In practice, the Parisian jurisdiction was notified in various ways, depending on the intervention time. We must distinguish between the initial notification from the procedure after opening a judicial information procedure. In the first case, the Paris Prosecutor s Office promotes the concurrent national jurisdiction at the local prosecutor s office. This notice is done under informal procedures with the approval of the Republic Prosecutor and, if there are problems, of the general prosecutor. It is confirmed 12

13 and formalised following telephone conversations by sending a written notice from the Paris prosecutor to the local prosecutor, which agrees to withdraw the case. This notice applies when the Paris prosecutor claims terrorist acts almost immediately after being perpetrated and also in case of late notice when the initially competent prosecutor has not started an information procedure. When an information procedure has already been opened 223(*) a procedure must be specified for the withdrawal of the investigation judge, but the initiative for it is reserved to the local Republic prosecutor. In accordance with article of the criminal procedure code, the local prosecutor shall request the investigation judge to withdraw the case in favour of the investigation jurisdiction in Paris. The presentation of this request requires of course the Paris prosecutor s approval. Before ruling, the investigation judge announces the person under examination and the civil part and invites them to present their remarks. The order can only be issued by the judge at least eight days after such notice. There is only one recourse against such order: within five days, the public ministry, the examined persons or the civil part can submit it to the criminal chamber of the Cassation Court. The competent judge must be designated within eight days of receiving the file. If the withdrawal is ordered for the benefit of the investigation judge in Paris, the competent local prosecutor sends the file to the Republic Prosecutor in Paris. Conversely, if the investigation judge in Paris finds that the deeds are not a terrorist act and are not subject to its jurisdiction, they must state such lack of jurisdiction at their own initiative or upon request from the Republic Prosecutor or the parties 224(*). The judge s decision may be referred to the criminal chamber of the Cassation Court under the same manner as above. If it decides that the investigation judge has no jurisdiction, the Cassation Court may appoint another investigation judge or estimate in the interest of justice that the investigation is to be carried out by the Paris court. However, in both cases the procedural provisions of the law of 9 December 1986 shall cease to apply. As soon as the order remains final the Republic Prosecutor in Paris shall send the procedure file to the competent local counterpart. Whether it is the case of a withdrawal order or lack of jurisdiction, the initial judge retains full jurisdiction until the expiry of the five-day period for appeal or until the date when the decision of the criminal court is notified. In both cases, arrest warrants remain valid and the procedural acts maintain their full effect. As shown in the report of the Senate committee on the administration of the State security policy in Corsica, the application of the withdrawal rules does not happen without difficulties 225(*). 13

14 b) Specialised structures The centralisation of inquiries has led to the creation of structures specialising in counterterrorism in the high instance court of Paris, the central directorate of the judicial police and the central directorate of general information in the Ministry of Interior. Indeed, the specifics of the crimes require thorough knowledge of the areas where terrorists operate and the means they use. Additionally, both political and judicial investigations require numerous reconciliations between material elements, persons and clandestine groups. As they are the only judicial structures, the mission reminds that despite the commonly used phrase, there is no counter-terrorist section in the high instance court of Paris including investigation judges and prosecutor magistrates, but two distinct sections. In the prosecutor s office there is the terrorism and attempts against State security section also known as section 14 or section A6, consisting of four magistrates, responsible for the public action, complying the instructions and terrorism-related inquiries. As for investigation, terrorism cases belong to section 4, also consisting of four magistrates. While the inquiry and investigation of terrorism files are assigned to specialised magistrates, judgment belongs to a common law criminal jurisdiction. However, as we have seen, the jurisdiction that establishes terrorism crimes is a jury court consisting exclusively of professional magistrates, for the purpose of limiting the effect of pressure or threats on the jurors. 14