Doc. 10439

26 January 2005

Draft Convention on the prevention of terrorism

Opinion¹

Political Affairs Committee

Rapporteur: Mr Murat Mercan, Turkey, Group of the European People’s Party

Conclusions by the Political Affairs Committee

1.       The Political Affairs Committee shares the overall positive assessment of the draft Convention on the prevention of terrorism expressed in the draft Opinion by the Committee on Legal Affairs and Human Rights and most of its conclusions and suggestions.

2.       It strongly supports, in particular, the reminder of the Assembly’s principled position in favour of a comprehensive convention on terrorism.

3.       At the same time, the Committee has to point out its views on the character of challenges in relation to terrorism, in order of priority in the fight against it and within the nature of an Assembly statutory opinion.

4.       Societies which are unable to take a critical look at themselves and to adapt to new challenges and evolving realities run the risk of being overwhelmed by these realities.

5.       The phenomenon of terrorism has grown to unprecedented and qualitatively new levels. As stated in Assembly Resolution 1400 (2004); Challenge of terrorism in Council of Europe member states, “… terrorism attacks the fundamental values of society and challenges the very existence of democracy”. Therefore, as further pointed out in Resolution 1400, “Terrorism…must not be allowed to exploit the freedoms and advantages of modern democratic societies”.

6.       The draft opinion, as prepared by the Committee on Legal Affairs and Human Rights, is mainly focused on the extent to which the draft Convention is in accordance with respect of human rights and scrutinises the measures suggested from this angle. Though absolutely legitimate and necessary, this approach is one-sided and if adopted in its present form by the Assembly, the Opinion would be unbalanced; as if the Assembly were solely worried by the protection of human rights in the fight against terrorism, not the effectiveness of the fight itself.

7.       The Committee believes that the Assembly, in the first place, should give its opinion on the substance of the Convention, i.e. whether it allows for more efficient national policies and co-operation in prevention of terrorism. The right balance should be found in the Convention between enhancing co-operation and finding more efficient ways of preventing terrorism – which is the substance of the draft Convention – and the respect for human rights which must remain the necessary framework for it. The Assembly’s opinion must also preserve this balance.

8.       To this effect, the Committee thinks that the Assembly should particularly welcome the innovative approach shown by the drafters of the Convention, their readiness to touch upon new, unexplored matters, and regulate some potentially dangerous social phenomena by criminalizing activities which may facilitate terrorism. Fully aware that this work is extremely delicate, the Assembly should recall its position stated in Resolution 1400 (2004) that “Terrorism…must not be allowed to exploit the freedoms and advantages of modern democratic societies” and encourage the CODEXTER to pursue its work on the draft Convention in view of finding the right balance between effectiveness of new terrorism-prevention measures and full compliance with Council of Europe standards.

9.       In this context, a more general question arises: whether a statutory Opinion by the Assembly on a draft convention should be of a purely technical nature, with the Assembly agreeing to be a legal counsel to the Committee of Ministers, or should the Assembly fully play its political role.

10.       With regard to the recommendations contained in the draft opinion (Doc. 10423, paragraph 3), the Committee makes the following comments and suggestions.

i.       As regards the Preamble of the draft Convention, the Committee agrees with the proposal to include a new indent as suggested by CODEXTER (see the draft Convention, footnote 39, second part) but prefers to insert this new indent after the current indent 4 and not at the end of the Preamble.

ii.       As regards Article 1 (“Terminology”), the Committee shares the view expressed in the draft Opinion that adding the reference of the purpose of an act would add clarity to the text. However, it believes that the term “principal offences” should also include "attempt” and “threat” (see footnote 5 to the draft Convention).

iii.       As regards Article 4 (“Public provocation to commit an act of terror”), the Committee is afraid that the introduction of an additional criterion in paragraph 2 as suggested by the Legal Affairs Committee would weaken the operational value of this Article by allowing acts of provocation which would “cause an imminent danger or the likelihood of one or more terrorist acts being committed” but wouldn’t fit the new criterion of “inciting violence” to be excluded from offences under this Article. The Committee therefore is against the change of the current text.

iv.       With regard to Article 6bis (“Non-reporting”), the Committee shares the view that if included as mentioned in footnote 27 of the draft Convention, this Article would lack clarity and could not be implemented. The need for society to unite to face terrorism, which the suggested article seems to seek, should be addressed by moral and political, not judicial methods. However, the Committee believes that if formulated appropriately, and with its scope limited to public officials, an article on non-reporting would contribute more efficiently to preventing acts of terrorism. The CODEXTER should therefore be encouraged to pursue discussions in order to find an appropriate drafting for this Article.

v.       With regard to Article 7 (“Ancillary offences”), the Committee agrees with the proposal in the draft opinion that only those who “knowingly” participate as accomplices should be concerned by this Article (sub-paragraph a.). However, it is hardly possible to “organize or direct others” without knowing the purpose. Therefore, adding the word “knowingly” in sub-paragraph b. is superfluous.

vi.       With regard to Article 11 (“Prevention of justification”) and Article 11bis (“Non-abuse of refugee status”), the Committee regrets that, instead of making alternative suggestions for the drafting of these two Articles – where the CODEXTER explicitly awaits the Assembly opinion – the Committee on Legal Affairs and Human Rights has chosen the easiest way by simply deleting these two controversial Articles.

vii.       Where Article 11 (“Prevention of justification”) is concerned, the Committee agrees that the wording proposed in the draft Convention (footnote 39, first indent), is unclear as to its purpose. However, the Committee believes that if carefully redrafted so as to explicitly forbid “apologie du terrorisme” / justification of terrorism with regard to offences established by the draft Convention, this article has its place – and its importance. The Committee recalls in this context that the freedom of expression, including the freedom of political speech, does not allow it to be exploited to disseminate messages of certain content, i.e. racist, xenophobic, anti-Semite statements, denial of war crimes, crimes against humanity and crimes against peace.

viii.       With regard to Article 11bis (“Non-abuse of refugee status”) and Article 18 (“Exclusion of the political exception clause”) while sharing doubts about the wording proposed in the draft Convention (footnote 40 and footnote 54 respectively), the Committee believes that further discussions are necessary to work out formulae which would respond to the purpose of these Articles without entering into collision with provisions of other treaties. Instead of suggesting to abandon it altogether, the CODEXTER should be encouraged to continue its work on these articles.

11.       Accordingly, the Political Affairs Committee suggests the following amendments:

Amendment 1

In the draft opinion, sub-paragraph 3 iii., after the words “in the Preamble, …”, add the words:

“after sub-paragraph 4,”

Amendment 2

In the draft opinion, sub-paragraph 3 iii. first line, after the words “acts of terrorisme..”, add the words:

“, by whoever perpetrated,”

Amendment 3

In the draft opinion, after sub-paragraph 3 iv, insert a new sub-paragraph as follows:

“When drafting the Explanatory Memorandum to Article 1 (“Terminology”), consider extending the term “principal offences” to attempt and to threat.”

Amendment 4

In the draft opinion, delete sub-paragraph 3 viii.

Amendment 5

In the draft opinion, delete sub-paragraphs 3 x. And 3 xi., and insert the following text:

“As regards Article 6bis (“Non-reporting”), the Assembly encourages the CODEXTER to pursue discussions with a view to finding a precise definition of the offence and limiting its scope to public officials”.

Amendment 6

In the draft opinion, sub-paragraph 3 xii., replace the words “…sub-paragraphs a. and b.” with the words “…sub-paragraph a.”

Amendment 7

In the draft opinion, replace sub-paragraph 3 xix. with the following text:

“As regards Article 11 (“Prevention of justification”), the Assembly encourages the CODEXTER to pursue discussions with a view to finding an unambiguous wording which would explicitly target public statements attempting to justify the offences established by the Convention”.

Amendment 8

In the draft opinion, replace sub-paragraph 3 xx. with the following text:

“As regards Article 11bis (“Non-abuse of refugee status”), the Assembly encourages the CODEXTER to pursue discussions with a view to finding the wording in line with international refugee law.”

Amendment 9

In the draft opinion, replace sub-paragraph 3 xxii. with the following text:

“As regards Article 18 (“Exclusion of the political exception clause”), the Assembly encourages the CODEXTER to continue the consideration of this Article, with due regard to other relevant treaties, in particular the Protocol amending European Convention on the Suppression of Terrorism (2003)”

Amendment 10

In the draft opinion, sub-paragraph 3 xxiii., indents 2a and 2b, replace the word “sufficient” with the words “credibly convincing”.

* * *

Reporting Committee: Political Affairs Committee.

Reference to Committee: Doc. 10357, Reference 3032 of 23.11.04

Draft Opinion adopted by the Committee on 26.01.05

Members of the Committee : MM. Abdülkadir Ateş (Chairperson), Mikhail Margelov (Vice-Chairperson), Latchezar Toshev, (Vice-Chairperson), Dick Marty (Vice-Chairperson) Mrs Manuela Aguiar, MM. Giuseppe Arzilli, David Atkinson,  Claudio Azzolini, Miroslav Beneš, Radu-Mircea Berceanu, Gerardo Bianco, Haakon Blankenborg, Giorgi Bokeria, Luc Van den Brande (alternate: Mr Stef Goris) Mrs Beáta Brestenská, MM. Doros Čhristodoulides, Mrs Anna Čurdová, MM. Enrique Curiel Alonso, Noel Davern, Michel Dreyfus-Schmidt, Mr Adri Duivesteijn (alternate: Mr Frans Timmermans, Mrs Josette Durrieu, MM. Mikko Elo, Jean-Charles Gardetto, Charles Goerens, Daniel Goulet, Andreas Gross, Klaus-Jürgen Hedrich, Jean-Pol Henry, Joachim Hörster, Tadeusz Iwinski, Elmir Jahić, Ljubiša Jovaševic, Lord Judd, Ivan Kalezić, Oleksandr Karpov, Petro Koçi, Konstantin Kosachev, Yuriy Kostenko, Mrs Daria Lavtizar-Bebler, MM. Göran Lindblad, Tony Lloyd, Younal Loutfi, Frano Matušic, José Medeiros Ferreira, Evagelos Meimarakis, Murat Mercan, Jean-Claude Mignon (alternate: Denis Badré), Marko Mihkelson (alternate: Mr Andres Herkel), Mrs Natalia Narochnitskaya, M. Zsolt Németh, Mrs Carina Ohlsson, MM Boris Oliynyk, MM Algirdas Paleckis, Theodoros Pangalos, Mrs Eleonora Petrova-Mitevska, Mrs Sólveig Petursdottir, Mrs Clara Pintat Rossell, MM. Gordon Prentice (alternate: Sir Sydney Chapman), Dumitru Prijmireanu, Ghiorghi Prisacaru, Gabino Puche, Lluis Maria de Puig, Jeffrey Pullicino Orlando, Umberto Ranieri, Michael Roth, Jan Rzymełka, Peter Schieder, Adrian Severin, Mrs Hanne Severinsen, MM. Samad Seyidov, Leonid Slutsky, Michael Spindelegger, Zoltán Szabó, Mehmet Tekelioglu, Tigran Torosyan, Mrs Marianne Tritz, MM. Vajif Vakilov (alternate: Azim Mollazade), Andrzej Wielowieyski, Bart van Wissen, Mrs Renate Wohlwend, Mr Marco Zacchera.

Ex-officio: M. Einarsson

N.B. : The names of the members who took part in the meeting are printed in bold

Head of the Secretariat : Mr Perin

Secretaries to the Committee: Mrs Nachilo, Mr Chevtchenko, Mr Dossow

¹        See Doc. 10423 tabled by the Legal Affairs and Human Rights Committee.