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Opinion 289 (2015)
Draft additional protocol to the Council of Europe Convention on the Prevention of Terrorism
1. The Parliamentary Assembly is concerned
about the impact that terrorism has on democracy, the rule of law
and human rights. It has always attached utmost importance to respect
for human rights in combating terrorism, as reiterated in Resolution 1840 (2011) on
human rights and the fight against terrorism. States must be in
a position to take appropriate measures to fight terrorism; but
“[t]here is no need for a ‘trade-off’ between human rights and effective
counter-terrorist action” (see paragraph 2 of the resolution). Sufficient
safeguards exist in international human rights law, including the
European Convention on Human Rights (ETS No. 5) and its protocols,
which allows for flexible responses to emergencies threatening the
very existence of societies, and more generally for the protection
of public order or national security interests or other legitimate
reasons.
2. The draft additional protocol 
to
the Council of Europe Convention on the Prevention of Terrorism
(CETS No. 196) is a response to the United Nations Security Council
Resolution 2178 (2014) on threats to international peace and security
caused by terrorist acts. It obliges States to criminalise certain
conduct which might be related to the commission of terrorist offences
and is particularly aimed at preventing and curbing the flow of
“foreign terrorist fighters”.
to
the Council of Europe Convention on the Prevention of Terrorism
(CETS No. 196) is a response to the United Nations Security Council
Resolution 2178 (2014) on threats to international peace and security
caused by terrorist acts. It obliges States to criminalise certain
conduct which might be related to the commission of terrorist offences
and is particularly aimed at preventing and curbing the flow of
“foreign terrorist fighters”. 3. The Assembly notes, in this connection, that the draft additional
protocol to the Council of Europe Convention on the Prevention of
Terrorism was drafted very speedily, shortly after the terrorist
attacks in Paris on 7, 8 and 9 January 2015. Some prominent international
non-governmental organisations (INGOs), such as Amnesty International,
the International Commission of Jurists and the Open Society Justice
Initiative, have criticised this rush and expressed concern about
the potential negative impact of this text on human rights, such as
the freedom of movement, the presumption of innocence or legal certainty,
as well as about the unclear separation between its application
in times of peace and war, and the applicability of international
humanitarian law. Doubts have also been raised about the criminalisation
of preparatory acts which do not appear to require a direct intent
to commit the principal offence (an act of terrorism), and which
are several stages removed from the main principal (terrorist) offence
which may take place.
4. The Assembly is fully aware of the above-mentioned concerns
and considers that they have not been sufficiently reflected in
the draft explanatory report to the draft additional protocol. In
particular, the introduction of the offence of “travelling abroad
for the purpose of terrorism” might be problematic from the point
of view of freedom of movement and the right to nationality. The
Assembly recalls that there is no commonly agreed definition of
terrorism and that terrorists are criminals, not soldiers, and that
their crimes do not amount to acts of war. As stressed in Resolution 1840 (2011),
“terrorism should be dealt with primarily by the criminal justice system,
with its inbuilt and well-tested fair trial safeguards to protect
the presumption of innocence and the right to liberty” (paragraph
6) and “[m]easures limiting human rights must be phrased clearly
and interpreted narrowly, in particular when criminal liability
is involved, and must be accompanied by adequate judicial and political
review” (paragraph 5.3).
5. The Assembly does not see a particular need to expand the
current legal framework on combating terrorism. But in light of
the draft explanatory report, it considers that sufficient safeguards
exist in the Convention on the Prevention of Terrorism, which shall
apply to States Parties, if the draft additional protocol is adopted
and enters into force. In particular, this convention clearly stipulates
that it does not apply to situations of armed conflict. The Assembly
nevertheless considers that the human rights safeguards in the text of
the draft additional protocol itself should be further strengthened,
as recommended below. Moreover, the implementation of the draft
additional protocol would depend on the States Parties transposing
it into their national criminal law, if need be.
6. The Assembly recommends that the Committee of Ministers make
the following amendments to the draft additional protocol to the
Council of Europe Convention on the Prevention of Terrorism:
6.1. in
the Preamble, add a new eighth paragraph that would read: “Having
regard to Opinion 289 (2015),
adopted by the Parliamentary Assembly of the Council of Europe on
23 April 2015”;
6.2. at the end of Article 1, add the following: “and their
obligations under international human rights law”;
6.3. in Article 8, paragraph 1, after the words “in particular”,
add “the right to a fair trial, the principle of legal certainty,”;
after the words “the Convention for the Protection of Human Rights
and Fundamental Freedoms”, add “and its protocols”; and after the
words “the International Covenant on Civil and Political Rights”,
add “, the Convention on the Rights of the Child”;
6.4. in Article 9, change the second sentence to read as follows:
“As between the Parties, all the provisions of the Protocol shall
be regarded as additional articles to the Convention and shall apply accordingly,
with the exception of Article 9 of the Convention.”