27 July 2001
European Democracies facing up to terrorism
Recommendation 1426 (1999)
Reply from the Committee of Ministers
adopted at the 761st meeting of the Ministers’ Deputies (18 July 2001)
1. The Committee of Ministers has carefully examined Parliamentary Assembly Recommendation 1426 (1999), “European democracies facing up to terrorism”.
2. This is not the first time that the Assembly has expressed concern at the resurgence of acts of terrorism and called for increased European co-operation to combat this evil. As it has always done in the past, the Committee of Ministers supports again the Assembly condemning acts of terrorism in all its forms irrespective of motive, wherever and by whomever committed.
3. At their 108th Session (Strasbourg, 10-11 May 2001), the Ministers strongly condemned all forms of terrorism and ethnically motivated violence and referred to the Committee of Ministers’ intention to discuss possible intensification of international action against terrorism.
4. The Assembly proposes a lengthy series of measures to make co-operation between European states more effective. The Committee of Ministers also wishes everything possible to be done to ensure that no terrorist crime goes unpunished. In the context of such co-operation, and in accordance with international obligations and national legislation, the Committee of Ministers wishes that all appropriate steps be taken to deny terrorists safe haven. Depending on circumstances, however, it does not think it either necessary or opportune to take all the action recommended by the Assembly in respect of existing European and universal conventions, or existing forms of co-operation between police forces, judicial authorities, the national security services or specialised international organisations. The Committee of Ministers recalls that the Council of Europe has adopted the European Convention on the suppression of terrorism (ETS No. 90), entered into force on 4 August 1978. In this respect, it urges states to ensure a more effective application of this Convention, one of the main problems being the important number of reservations made to this Convention. The Committee of Ministers is waiting for the outcome of the examination to be carried out by the CDPC concerning the ways in which co-operation – both judicial and police co-operation – is organised in Europe. In this respect, the CDPC might possibly take certain of the Assembly’s proposals into consideration.
5. The Committee of Ministers asks the Assembly to examine the appended opinion from the European Committee on Crime Problems (CDPC), which provides a full picture of the present state of European co-operation in this area, and of the work which the CDPC will itself be doing in connection with its efforts to stimulate international co-operation on crime problems. This opinion concerns Sections 16(i) to 16(xii) of the Recommendation, with the exception of Section 16(ix).
6. As far as the last-named section is concerned, the Committee of Ministers refers to the important work on education for democratic citizenship conducted for years under the auspices of the Council for Cultural Co-operation. The results of this major project were presented at the final conference, which was held in Strasbourg on 14-16 September 2000. The conclusions of the conference, and also the research, analyses and case studies on which they are based, will enable governments, educationalists and socio-cultural operators to draw on analyses, on practical experience gained in the field and on educational instruments designed to inculcate tolerance and respect for others.
7. The Committee of Ministers also refers to another important conference, the European conference against racism, which was held in Strasbourg from 10 to 13 October 2000, and which also opened up new prospects for political reflection and action to promote the values of equality, tolerance and humanism championed by the Council of Europe.
8. Finally, concerning Section 16(v), the Committee of Ministers will return to the question raised by the Assembly with its reply - still under consideration - to Recommendation 1458 (2000), “Towards a uniform interpretation of the Council of Europe conventions: creation of a general judicial authority”.
9. The Committee of Ministers has forwarded Recommendation 1426 (1999) to the governments of the member states.
Opinion of the European Committee on Crime Problems (CDPC)
on Parliamentary Assembly Recommendation 1426 (1999)
on European democracies facing up to terrorism
The European Convention on the Suppression of Terrorism (ETS 90) constitutes the Council of Europe’s major contribution to international co-operation in responding to terrorism. It was opened for signature in Strasbourg on 27 January 1977 and has since been ratified by 32 member states and signed by 4 others.
The Convention (Article 1) provides that, for the purposes of extradition between contracting states, none of a number of enumerated offences shall be regarded as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. That provision modifies the consequences of, for instance, Article 3, paragraph 1 of the European Convention on Extradition (ETS 24), which provides that extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested party as a political offence or as an offence connected with a political offence (the "political offence exception"). The Terrorism Convention thus eliminates – as a general rule - the possibility for the requested state to invoke the political offence exception in respect of an extradition request. Where, the Convention allowing, the requested state invokes the political offence exception, then that state, although not extraditing the person wanted, must submit the case to the competent authorities for the purpose of prosecution. The obligation to bring the person wanted before the criminal justice system (« judicare ») is subsidiary in that it is conditional on the preceding refusal of extradition in a given case.
2. General observation
Assembly Recommendation 1426 in general condemns terrorism in all its forms. The CDPC cannot but support that statement.
The CDPC, either directly or through its subordinate body, the Committee of Experts on the Operation of Conventions in the Penal Field (PC-OC), constantly follows developments in international legal co-operation in criminal matters, seeking in particular to solve difficulties or otherwise take initiatives dictated by changing circumstances.
In this context, the CDPC is presently engaged in an exercise of reflection concerning the whole way in which co-operation – both legal and police co-operation – is organised in Europe. Any definite reaction to the number of different issues raised in the Assembly Recommendation would therefore be premature at this stage. The following opinion is in that sense provisional.
Despite the points of view expressed below on this subject, it should be noted that, subsequently to the ongoing discussions, the CDPC might possibly take the following points into consideration:
- extending suppression of terrorist acts, to include attacks against property, as well as certain forms of aiding and abetting crime (preparatory acts, funding, participation in gangs);
- accepting universal jurisdiction, necessary for the effective implementation of the principle "aut dedere aut judicare";
- protection of victims, taking account of the significant changes that have taken place over two decades in protecting victims of terrorist attacks.
3. Comments on the preambular part of Recommendation 1426
Paragraph 5 contains a definition of terrorism that should be amended insofar as it takes account of motive, whereas there is a general trend towards the principle of de-politicising terrorist offences so as to facilitate mutual assistance and extradition. This principle has been confirmed, inter alia, by the recent United Nations Conventions for the Suppression of Terrorist Bombings (15 December 1997) and for the Suppression of Financing of Terrorism 9 December 1999). The CDPC therefore expresses reservations with regard to the definition of terrorism as set out in the Assembly recommendation.
Paragraph 6 concerns operational co-operation and the exchange of information between specialised services. From this perspective, it may be appropriate to highlight the further advantages that Interpol might contribute. Article 18.4 of the Convention on the Financing of Terrorism, for example, provides for the possibility of information exchanges being conducted through the intermediary of Interpol.
With regard to paragraph 10, the CDPC wishes to emphasise that this should not be interpreted as opening up any possibility of infringing the freedom to inform the press.
4. Comments on the individual recommendations
a. Concerning points i and ii of paragraph 16
In points i and ii of paragraph 16, the Assembly recommends the Committee of Ministers to revise the Convention ETS 90 in the sense of extending its scope of application to act presently not covered by it.
The CDPC considers that the United Nations Convention for the Suppression of the Financing of Terrorism as well as the United Nations Convention for the Suppression of Terrorist Bombing cover to a large extent the above-mentioned Assembly recommendations. It sees no merit in duplicating the work already done within the United Nations.
Member states of the Council of Europe could however be encouraged to sign and ratify those two conventions.
b. Concerning point iii of paragraph 16
In point iii of paragraph 16, the Assembly calls for the deletion of Article 13 of the said Convention, that allows for reservations to be made.
The CDPC has great sympathy with this recommendation. However, it stresses that Article 13 may only be deleted from the Convention upon a unanimous vote of all States Party to it. Seventeen out of 32 parties to the Convention have availed themselves of the possibility given by Article 13. Under these circumstances, the CDPC doubts whether this recommendation is likely to be generally acceptable.1
c. Concerning point iv of paragraph 16
In point iv of paragraph 16, the Assembly recommends the Committee of Ministers to amend the European Convention on Extradition by defining the concept of political offence and proposing a simplified extradition procedure.
The CDPC is not aware of any difficulties arising out of the absence of a definition of the concept of political offence.
The idea of providing for a simplified extradition procedure has its merits. It was taken up, in particular, within the European Union and the results appear to be satisfactory. The CDPC has already instructed the PC-OC to consider that idea as soon as it starts working on a 3rd Additional Protocol to the European Convention on Extradition. In this respect, the CDPC wishes nevertheless to observe that it fails to see any link between terrorism and simplified extradition.
d. Concerning point v of paragraph 16
In point v of paragraph 16, the Assembly recommends the Committee of Ministers to consider the possibility of setting up a European criminal court.
This recommendation will be examined in the context of both (a) the proposal to create a Judicial Authority within the Council of Europe and (b) the setting-up of the International Criminal Court2.
e. Concerning point vi of paragraph 16
In point vi of paragraph 16, the Assembly recommends the Committee of Ministers to consider the establishment of a procedure whereby in certain cases a person accused of committing a terrorist offence could be charged and tried for such an offence in a country other than the one in which the offence is committed.
A number of legal avenues are already available in Europe that allow for a person accused of having committed an offence in one country to be charged and tried for such an offence in another country. In practice, however, such avenues are not sufficiently explored. In particular, there is uncertainty with respect to such questions as the circumstances under which such avenues may or should be taken, the right (or duty) of initiative in that respect, and the involvement (where appropriate) of more than two countries. The CDPC is presently examining these questions.
f. Concerning point vii of paragraph 16
In point vii of paragraph 16, the Assembly recommends the Committee of Ministers to initiate co-operation with the United Nations.
The CDPC is already closely co-operating with the United Nations in criminal matters, particularly with the United Nations Commission on Crime Prevention and Criminal Justice.
g. Concerning point viii of paragraph 16
In point viii of paragraph 16, the Assembly recommends the Committee of Ministers to encourage member states to co-operate more closely with Interpol and to examine with the European Union the possibility of extending Europol to the whole of the European area.
The CDPC fully supports any initiative designed to increase the already high level of co-operation with Interpol. As to the extension of Europol, this is an internal matter for the European Union.
h. Concerning point ix of paragraph 16
This point does not fall within the fields for which the CDPC is responsible.
i. Concerning point x of paragraph 16
In point x of paragraph 16, the Assembly recommends the Committee of Ministers to provide fuller protection for the victims of terrorist acts.
The CDPC recalls that the European Convention on the Compensation of Victims of Violent Crimes (ETS N° 116) applies to victims of terrorist acts.
j. Concerning point xi of paragraph 16
In point xi of paragraph 16, the Assembly recommends the Committee of Ministers to invite member states to incorporate the principle “aut dedere aut judicare” in their legislation.
This question is complex and the CDPC will give consideration to it within its present reflection on a new start in co-operation in criminal matters in Europe.
k. Concerning point xii of paragraph 16
In point xii of paragraph 16, the Assembly recommends the Committee of Ministers to invite member states to strengthen bilateral co-operation.
It has been the Council of Europe’s policy for over forty years, as well as the policy of many of its member States, to privilege multilateral co-operation over bilateral co-operation in criminal matters. However, privileging multilateral co-operation does not exclude strengthening bilateral co-operation where it leads to a more effective fight against crime, and to that extent the CDPC can endorse the Assembly’s recommendation.
1 According to the Convention of 27 September 1996 relating to extradition between the member states of the European Union, reservations according to Article 13 of the European Convention on the suppression of Terrorism do not apply between European Union Member States (Article 5, paragraph 4).
2 This refers to the entry into force of the Rome Statute of the International Criminal Court (although it should be noted that the idea of giving competence to this Court with regard to treaty crimes, including terrorist crimes, has not been accepted).