TABLE OF CONTENTS

Council of Europe:

Amnesty International’s Preliminary Observations on the December 2004 Draft European Convention on the Prevention of Terrorism

Introduction

Amnesty International submits the following preliminary observations on the Council of Europe’s Draft Convention on the Prevention of Terrorism which is set out in CODEXTER (2004) 27 rev 4, of the 15^th December 2004, (a copy of the Draft Convention is set out in Appendix 1 of this document), in the context of its work to ensure that the measures taken by states - acting individually and collectively - to protect persons and prevent and prosecute acts of terrorism, respect their obligations to secure the human rights of all persons within their territories and subject to their jurisdiction, without discrimination.¹

Amnesty International welcomes the fact that the Committee of Ministers has requested that both the Parliamentary Assembly of the Council of Europe and the Council of Europe’s Commissioner for Human Rights submit Opinions on this draft Convention.

The organization regrets, however, that until this stage, there has been little or no consultation about this draft Convention by the CODEXTER or the Council of Europe’s 46 Member States with members of civil society, including non-governmental organizations (NGOs). The organization is concerned that the schedule for drafting this treaty and for comment thereon, notwithstanding the complexity of the issues it addresses, is so short that there is insufficient time for careful reflection, comment, reconsideration and revision.

As Amnesty International has not had access to the drafting process being undertaken by the Council of Europe’s Committee of Experts on Terrorism (known as CODEXTER) and the draft provisions have only recently been made public, these observations are necessarily preliminary in nature; they do not represent a comprehensive and exhaustive analysis of the draft Convention. Rather these observations seek to highlight areas of particular concern and set out recommendations to strengthen the human rights protections in the draft Convention. They are submitted with a view to assisting the further consideration of this draft Convention by the bodies and mechanisms of the Council of Europe, including the Commissioner for Human Rights and the Parliamentary Assembly of the Council of Europe, the CODEXTER and the Committee of Ministers.

Amnesty International considers that the current draft of this Convention is very broad in scope and that many of the issues it seeks to cover are extremely complex. Proposed provisions set out in the December 2004 draft of the Convention require state parties, inter alia, to take measures: at the national level to prevent terrorism and to protect and support victims of terrorism; to criminalize public provocation of terrorism, recruitment for terrorism and training of terrorism, incitement to terrorism; and to cooperate with other states to investigate, to try or to extradite people suspected of such crimes. Several of these provisions are likely to have effect existing human rights obligations and instruments.

The complexity of this exercise is compounded by the lack of an internationally agreed definition of terrorism.

As highlighted further below, the organization is concerned at a number of issues including: the lack of clarity of the definition of the “acts of terrorism” on which the provisions related to criminalization are based, as well as the suggested description of terrorism underlining this Convention set out in the Preamble. Amnesty International also considers that the various provisions aimed at ensuring the protection of human rights must be strengthened and recommend, among other things, that consideration be given to including an over-arching human rights provision that expressly requires that all measures taken pursuant to this Convention be fully consistent with human rights law and international humanitarian law and standards.

The organization therefore considers that before the treaty is adopted by the Council of Europe considerable work remains to be done to ensure that it requires that the measures taken by states to prevent and prosecute acts of terrorism respect and protect the rights of all persons, without discrimination.

Amnesty International urges the Member States of the Council of Europe, as well as its bodies and mechanisms to:

• consider the preliminary observations and recommendations set out below;

• ensure that members of civil society, including relevant NGOs are informed and consulted in the course of further work on this draft Convention. To this end, at a minimum, the Council of Europe and its member states should ensure that all future drafts of this Convention are made available on the Council of Europe web site within a timeframe and schedule that will allow their due consideration and comments to be submitted in a timely manner; and that NGOs and European National Human Rights Institutions are invited to attend and participate in the meetings of the CODEXTER;

• ensure that all of the provisions of the treaty which is adopted set out the highest standards of protection of human rights of all persons, including both victims and suspects, even if this requires postponement of the intended adoption date.

Preamble

Amnesty International urges the deletion of the final paragraph in the Preamble which reads:

“Recalling that terrorism has the purpose by its nature or context to intimidate a population or to compel a government or an international organisation to do or abstain from doing any act.”

The organization considers that this provision is dangerously overbroad. Among other things, it conflates the notion of ‘terrorism’ with the notion of dissent. It risks broadening the concept or definition of terrorism to cover legitimate, non-violent dissent, protest or opposition to the actions or in-actions of governments and international organizations that is protected under international human rights instruments. This would be inapposite to the democratic values of the Council of Europe and would be open to dangerous abuse. Also absent from this provision is any notion to the gravity of terrorism and the use or threat of use of violence usually associated with such acts. ²

Amnesty International also urges that consideration be given to supplementing the Preamble with references to additional human rights obligations, principles and provisions which form the context of the Convention, including, among others:

• the fundamental principles of the Council of Europe;

• the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Convention on the Suppression of Terrorism and its Amending Protocol, as well as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1951 Geneva Convention relating to the status of Refugees and the Geneva Conventions of 1949 and their two Additional Protocols;

• the Council of Europe’s Guidelines on Human Rights and the Fight against Terrorism, and, once adopted, the Council of Europe’s Guidelines on the Protection of Victims of Terrorist Acts; and,

• ECRI General Policy Recommendation No. 8 on combating racism while fighting terrorism, as well as the relevant Resolutions and Recommendations of the Parliamentary Assembly of the Council of Europe.

Article 1 - Terminology

Several Articles of this draft Convention require state parties to take specific measures with regards to “acts of terrorism” Thus, the definition of the term “acts of terrorism” is key. However, Amnesty International is concerned that the definition included in Article 1 is unclear.

Presumably, in view of the fact that there is no international consensus on a comprehensive definition of terrorism, in the light of the complexities involved, Article 1 of this draft Convention does not attempt to set out a separate definition of “acts of terrorism”.

Instead, for the purposes of this treaty an “act of terrorism” is defined as “any of the principal offences within the scope of and as defined” in number of specific UN treaties which are listed in an Annex to the Convention.

This same list of treaties appears in Article 1 of the consolidated text of the European Convention on the Suppression of Terrorism, as amended by its Protocol, under which the offences set out therein are not to be considered “political” for the purposes of extradition. It should be noted, however, that to date the amending Protocol to the European Convention on the Suppression of Terrorism has not yet entered into force as it has only been ratified by 10 of the 44 parties to the European Convention on the Suppression of Terrorism.

As noted above, Amnesty International is concerned that the current formulation of Article1 of the December 2004 draft of the European Convention on the Prevention of Terrorism does not set out a clear definition of “an act of terrorism”. Among other things, it is not clear what the “principal offences” set out in the range of treaties listed in the Annex are. The fact that some of the treaties listed in the Annex of the draft Convention themselves define offences by referring to other treaties and/or define offences broadly compounds this problem.

The principle of legality dictates that only acts that are defined clearly and precisely may be criminalised. Amnesty International is concerned that the present definitional formulation fails to apply this principle, pointing as it does in the general direction of other treaties without explicitly stating what precisely in those treaties would be considered an offence under the present one. As a result, the treaty gives a wide margin of appreciation to states to criminalise the behaviour described in Articles 4-7 in reference to a range of acts. Thus States Parties may apply very different definitions of terrorism as the basis to which these offences attach. In addition, the proportionality of the impact of such offences on the rights of freedom of expression and freedom of association is entirely dependent on the definition of ‘acts of terrorism’ to which they are attached.

The organization therefore welcomes the fact that the CODEXTER has agreed to consider the need to reformulate this Article.

Article 2 - Purpose

Amnesty International urges that Article 2 be supplemented by adding an overarching human rights protection clause to this Convention, which expressly requires that the measures taken by states to prevent and repress acts of terrorism shall themselves respect human rights and international humanitarian law.

The organization considers that the following phrase included in this draft Article is too vague

“with due regard to existing applicable multilateral or bilateral treaties or arrangements between States Parties”. ³

The organization notes that, although Article 9 sets out a human rights clause, it is only applicable to measures taken under Articles 4-7 (criminalisation of provocation, and recruitment and training for terrorism); it is not applicable to other measures including confiscation measures which are now contemplated in Article 8bis.

Article 4 - Public provocation to commit an act of terrorism

Amnesty International is extremely concerned at the potential breadth of the definition of ‘public provocation to commit an act of terrorism’ set out in the current draft of Article 4(1).

At a minimum the organization would urge that the following final phrase of this provision be deleted:

"…including where the message, although not directly advocating such acts, would be reasonably interpreted to have that effect, inter alia by presenting an act of terrorism as necessary and justified."

The inclusion of such a provision creates a serious risk of disproportionate restriction on freedom of expression and the potential for discrimination through the scope for interpretation in the case of a message that does “not directly advocate acts of terrorism”. Being charged with a terrorism-related offence under some national laws has such serious and distinct consequences in terms of the application of a number of rights including the right to asylum, the right to liberty and certain fair trial rights, that such a wide net cannot be cast without a very serious risk of abuse.

Similarly the organization urges that the inclusion of the word “likelihood” in Article 4(2) be reconsidered in the interest of legal certainty and narrowing the description of the offence, so as to minimize the possibility of over-broad application.

Article 5 – Recruitment for Terrorism

Given the potential serious impact of provisions criminalizing membership of an organization on the right to freedom of association, Amnesty International welcomes the fact, (indicated in footnote 19 of the December 2004 draft of the Convention), that the CODEXTER will reconsider draft Article 5, criminalizing recruitment for terrorism. During such discussions the organization recommends that CODEXTER consider, among other things, the impact of the absence of the inclusion of a requirement of intent to recruit as well as the impact on freedom of association of existing procedures of proscription, particularly where there is no procedure for independent, thorough judicial review of a decision to proscribe an organization.

Article 6bis - Non-reporting

Amnesty International strongly recommends the deletion of the proposed new provision, requiring States Parties to criminalize the failure of a person to report to the competent authorities facts concerning acts of terrorism and offences of recruitment or training for terrorism and acts preparatory thereto, as set out in Articles 5-7 of this draft Convention.

The currently proposed provision, set out in footnote 27of the December 2004 draft of this Convention, is imprecise; it does not even require knowledge or suspicion that the 'facts' that were not reported concern acts of terrorism, or specific intent not to report. The creation of such an offence, particularly in the manner set out in footnote 27, would be contrary to the principle of nullum crimen, nulla poena sine lege which requires that, in order to constitute an offence, criminal conduct must be defined in law with sufficient precision so as to prevent arbitrary enforcement.

Amnesty International is concerned that the inclusion of this provision would be open to abuse and the potential use of criminal law to penalise individuals in a discriminatory fashion based on their perceived association with ‘terrorism’ or with opposition groups and/or journalists.

Article 8 - Sanctions and measures

In the light of the fact that states which are not members of the Council of Europe may become parties to this Convention (in accordance with Articles 22 and 23 of the current draft) and that some of these states may seek to include the death penalty as a possible punishment for the offences to be established in national law under this Convention, Amnesty International urges that Article 8(1) be supplemented by a provision which expressly prohibits States Parties from including the death penalty as a possible penalty for the offences set out in this Convention.

Amnesty International also urges that Article 8(2) be supplemented by an express statement which clarifies that the previous final conviction in a foreign state for offences referred to in this Convention may only be taken into account for the purposes of determining the sentence for a subsequent offence by a State Party if the proceedings conducted in the foreign state were conducted in accordance with international human rights standards. This will ensure that convictions resulting from unfair trials are not taken into account and not thus encouraged.

Article 9 - Conditions and safeguards

As noted above in the observation on Article 2, Amnesty International recommends the inclusion in this Convention of an overarching human rights clause which requires that all of the measures taken by States Parties in accordance with this Convention are consistent with their obligations under international human rights and international humanitarian law and standards.

The organization welcomes in principle the apparent intent of the article - to ensure that application of the criminalisation measures required by Articles 4-7 of this Convention be “consistent with the rule of law and respect of human rights and fundamental freedoms” and “subject to the principle of proportionality, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness or discriminatory or racist treatment”. However, Amnesty International regrets that these principles are not expressly extended to other provisions including, among others, to Article 8bis on confiscation. The organization therefore has also urged the inclusion of a similar overarching clause applicable to all provisions of this Convention be included to Article 2.

In addition, Amnesty International would suggest that that the reference to particular rights and standards (i.e., the rights to freedom of expression, association and religion and the European Convention on Human Rights) in this Article might call into question the duty of states to ensure respect of other human rights and the compliance with a range of other human rights standards (enshrined, inter alia, in other Council of Europe and UN instruments) which are not mentioned.

Article 11 - Prevention of justification

Amnesty International strongly recommends the deletion of such a provision in the operative part of this Convention In making this recommendation the organization notes that the Preamble to the Council of Europe’s Guidelines on Human Rights and the Fight against Terrorism and the Preamble to the draft Guidelines on the Protection of Victims of Acts of Terrorism both contain such clauses. ⁴

Article 11bis - Non-abuse of the refugee status

Amnesty International urges the exclusion from this Convention of a provision which would require states to take “appropriate measures” to ensure that refugees status is not granted to persons about whom there are serious reasons for considering that they have committed an offence of incitement to terrorism, training of terrorism or recruitment of terrorism set out In Articles 4-7 of this Convention.

Amnesty International believes that inclusion of such a provision could create a new exclusion clause, outside the international refugee protection system, which could lead to States Parties to this Convention excluding a person from refugee status before ensuring the full assessment of the claim under the UN Refugee Convention in a fair procedure.

The determination to exclude an individual from refugee status, in application of Article 1(F) of the UN Refugee Convention⁵, should only be made after full consideration of the asylum claim in a fair and satisfactory procedure in accordance with international law and standards. A preliminary consideration that someone might fall under the provisions of the exclusion clauses should not hinder the full examination of the claim for asylum.

The inclusion of such a clause could be viewed as a preventative measure against suspected terrorists and make it possible to deny, altogether, an individual access to the asylum procedure and/or any access to judicial review of the decision.

It could also lead to states deporting an asylum seeker without considering the risk of their persecution upon return, potentially breaching the principle of non-refoulement.

More generally, the vague language of the proposed provision set out in footnote 40 opens the door to overbroad interpretation, and risks resulting in arbitrary decisions and discrimination.

The very inclusion of such a provision in this Convention could encourage the misleading and dangerous view that asylum seekers and refugees are ‘suspected terrorists’ and risks undermining the asylum system as an essential human rights protection mechanism.

Amnesty International believes that in cases in which, after a full and fair procedure, an asylum-seeker or a refugee is considered to be a suspect of crimes under international law such as terrorism, they should be referred to the relevant prosecution authorities or the individual should be surrendered to another state which will instigate proceedings which meet international human rights law and standards.

Article 12 - Protection, compensation and support of victims of acts of terrorism

While Amnesty International welcomes the intention to include in this Convention an Article requiring states to take measures to support and protect victims of terrorist acts, the organization considers that the draft Article should be strengthened in a manner which is consistent with international standards including, among others, the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Among other things, Amnesty International considers that, if retained in the Convention, this article should reaffirm the duty of states to respect the dignity and private and family life of victims; ensure that they receive shelter; material and social assistance, necessary medical and psychological care and treatment; have access to justice and receive fair and adequate reparation, including inter alia rehabilitation, restitution and compensation,⁶regardless of the identification, arrest or conviction of those responsible for the terrorist act. This article should also be extended to address the duties of State Parties to assist those nationals and residents who were victims of terrorist acts in the territory of another state. It should be noted that such elements are consistent with the provisions of the Council of Europe’s draft Guidelines on the Protection of Victims of Terrorist Acts, which are currently under consideration by the Committee of Ministers.

Article 13 - Duty to investigate

Amnesty International is concerned that Article 13(3) omits mention of fundamental human rights guarantees applicable to persons suspected of crimes, including, among others those, set out in Articles 3, 5 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In its experience, such fundamental guarantees are often violated in cases when an individual is suspected of committing serious crimes, such as those required by this Convention to be established, investigated and prosecuted.

The organization therefore urges that the requirement of respect for the fundamental rights of the suspect, including those set out in Articles 3, 5 and 6 of the European Convention on Human Rights, be expressly incorporated into this Article.

Article 17 - General principles for international co-operation

Amnesty International urge the inclusion of a paragraph in this article which specifies that all forms of cooperation, including extradition and mutual assistance, must be consistent with the obligations of States Parties under international human rights law and, in particular, the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted consistently “with ‘the general spirit of the Convention’ an instrument designed to maintain and promote the ideals and values of a democratic society.”⁷

In addition, Amnesty International considers that this article should be supplemented by a provision which excludes the duty of cooperation if there is a risk that the cooperation provided may result in the torture or other inhuman or degrading treatment or punishment of a person, or that risk that a person will be subjected to an unfair trial or the imposition of the death penalty as a possible penalty.

Article 18bis - Discrimination

Amnesty International recommends that consideration be given to changing the title of this provision to reflect the broader nature of the safeguards that it contains.

Amnesty International strongly urges that paragraph 2 of Article 18bis be extended to remove the obligation to extradite or afford mutual legal assistance where there is a risk of cruel, inhuman and degrading treatment or of a fundamental breach of the right to a fair trial. Case law of the European Court of Human Rights has specifically addressed the issue of extradition where there is a risk of torture, inhuman or degrading treatment or punishment in breach of Article 3 of the European Convention on Human Rights or of a serious breach of rights to a fair trial (under Articles 5, 6 and 7 of European Convention on Human Rights and Article 2 of Protocol 7 thereto)⁸. Article XIII of the Council of Europe’s Guidelines on Human Rights and the Fight Against Terrorism, adopted in July 2002, reflect this jurisprudence.⁹

Article 19 – Spontaneous information

Amnesty International is concerned at the broad ambit of the proposed draft of this Article which does not limit the application to investigations and proceedings relating to acts of terrorism, nor does it specify that such exchange of information must respect the right to privacy and be carried out in accordance with international standards of data protection.

Amnesty International has also raised concern about the use and transmission by authorities of information adduced as a result of torture or other ill-treatment, which undermines the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment set out in Article 3 of the European Convention on Human Rights and Article 7 of the International Covenant on Civil and Political Rights, and is inconsistent with states obligations under these provisions.¹⁰In the light of such practices, the organization urges the inclusion of an express prohibition of both the transmission and use of information so obtained.

Article 31 - Follow up

Given the potential impact of some of the provisions of this draft Convention on the enjoyment of human rights, Amnesty International recommends that Article 31(1) be expanded to expressly include a requirement to make a specific assessment of the impact of the application of this Convention on human rights. The organization believes that such assessment should focus, among other things, on those rights which are likely to directly affected by the nature of the offences created in the draft Convention such as the right to freedom of expression, religion, and association as well as the right to privacy, to a fair trial, the right to seek and enjoy asylum and the absolute prohibition of torture and other cruel inhuman or degrading treatment or punishment.

APPENDIX: Draft Convention on the Prevention of Terrorism

as set out in CODEXTER (2004) 27 rev 4, of the 15^th December 2004

Strasbourg, 15 December 2004 CODEXTER (2004) 27 rev 4

Restricted

COMMITTEE OF EXPERTS ON TERRORISM

(CODEXTER)

DRAFT CONVENTION ON THE PREVENTION OF TERRORISM AS ADOPTED BY THE CODEXTER IN FIRST READING AT ITS 6TH MEETING

STRASBOURG, 13-15 DECEMBER 2004

Document prepared by the Secretariat

Directorate General of Legal Affairs

GMT@coe.int - Fax (33) (0)3 88412764 - http://www.coe.int/gmt

DRAFT CONVENTION ON THE PREVENTION OF TERRORISM¹¹

Preamble

The member States of the Council of Europe and the other States signatory hereto;

Considering that the aim of the Council of Europe is to achieve greater unity between its members;

Recognising the value of fostering co-operation with the other States Parties to this Convention;

Wishing to take effective measures to prevent acts of terrorism and to counter, in particular, public provocation to commit such acts, recruitment and training for terrorism;

Aware of the growing concern caused by the increase in acts of terrorism and the victimisation of a large number of persons and in this connection, reaffirming their profound solidarity with the victims of terrorism and their families;

Recalling the need to strengthen the fight against terrorism while respecting human rights and fundamental freedoms as well as other provisions of international law, including international humanitarian law;

§¹²

Recalling that terrorism has the purpose by its nature or context to intimidate a population or to compel a government or an international organisation to do or abstain from doing any act;¹³

Have agreed as follows:

Article 1 – Terminology¹⁴

1. For the purposes of this Convention, “act of terrorism” means any of the principal offences¹⁵within the scope of and as defined in one of the treaties listed in the Annex.

2. On depositing its instrument of ratification, acceptance, approval or accession, a State which is not a party to a treaty listed in the Annex may declare that, in the application of this Convention to the respective State Party, that treaty shall be deemed not to be included in the Annex. The declaration shall cease to have effect as soon as the treaty enters into force for the State having made such a declaration which shall notify the Secretary General of the Council of Europe of this entry into force.¹⁶

Article 2 – Purpose

The purpose of the present Convention is to enhance the efforts of States Parties in preventing acts of terrorism and their negative effects on the full enjoyment of the right to life and other human rights, both by measures to be taken at national level and through international co-operation, with due regard to the existing applicable multilateral or bilateral treaties or arrangements between the States Parties.

Article 3 – National prevention policies

1. Each State Party shall take appropriate measures, particularly in the field of specialised training of law enforcement authorities and other bodies¹⁷, and in the fields of education, culture, information, media and raising public awareness, with a view to preventing the commission of acts of terrorism while respecting human rights and fundamental freedoms, as set forth in international law and practice, including the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms or any other instrument in the field of human rights that it is a Party to.¹⁸¹⁹²⁰

2. Each State Party shall take such measures as may be necessary to improve and develop the co-operation among national authorities with a view to preventing the commission of acts of terrorism and dealing with their effects, by, inter alia:

1. exchanging information;

2. improving the physical protection of persons and facilities;

3. enhancing training and coordination plans for civil emergencies.

3. Each State Party shall encourage inter-religious and cross-cultural dialogue involving, where appropriate, non-governmental organisations and other elements of civil society with a view to preventing ethnical, religious or other tensions that might lead to the commission of acts of terrorism.

Article 3bis – International co-operation on prevention²¹

States Parties shall, as appropriate and with due account to their capabilities, assist and support each other with a view to enhancing their capacity to prevent the commission of acts of terrorism, including through exchange of information and best practice, as well as through training and other joint efforts of a preventive character.

Article 4 – Public provocation to commit an act of terrorism²²

1. For the purposes of this Convention, "public provocation to commit an act of terrorism” means the distribution, or otherwise making available, of a message to the public,²³ with the intent to incite the commission of an act of terrorism, including where the message, although not directly advocating such acts, would be reasonably interpreted to have that effect, inter alia, by presenting an act of terrorism as necessary and justified.^{24 25}

2. Each State Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law public provocation to commit an act of terrorism, as defined in paragraph 1, when committed unlawfully²⁶and intentionally,²⁷provided that the provocation causes an imminent danger or likelihood of one or more terrorist acts being committed. When considering whether such danger is caused, the nature of the author and of the addressee of the message as well as the context in which the offence is committed shall be taken into account.²⁸

Article 5 – Recruitment for terrorism²⁹

1. For the purposes of this Convention, "recruitment for terrorism" means to solicit another person to participate in the commission of an act of terrorism, or to join an association or group, for the purpose of contributing to the commission of one or more acts of terrorism by the association or the group.³⁰³¹

2. Each State Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law recruitment for terrorism, as defined in paragraph 1, when committed unlawfully³²and intentionally.³³

Article 6 – Training for terrorism³⁴

1. For the purposes of this Convention, “training for terrorism” means to provide instruction or training in the making or use of explosives, firearms or other weapons, or in any method or technique, for the purpose of carrying out an act of terrorism, knowing that the skills provided are intended to be used for this purpose.³⁵

2. Each State Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law training for terrorism, as defined in paragraph 1, when committed unlawfully³⁶and intentionally.

Article 6bis – Non-reporting³⁷

Article 7 – Ancillary offences³⁸

1. Each State Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law if a person:

a. Participates as an accomplice in an offence as set forth in Articles 4-6 of this Convention;

b. Organizes or directs others to commit an offence as set forth in Articles 4-6 of this Convention;

c. Contributes to the commission of one or more offences as set forth in Articles 4-6 of this Convention by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

i. Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in Articles 4-6 of this Convention; or

ii. Be made in the knowledge of the intention of the group to commit an offence as set forth in Articles 4-6 of this Convention.

2. Each State Party shall also adopt such measures as may be necessary to establish as a criminal offence under its domestic law if a person attempts to commit an offence as set forth in Articles 5 and 6 of this Convention.

Article 7bis - Non application of the Convention³⁹

This Convention shall not apply where any of the offences established in accordance with Articles 4-7 is committed within a single State, the alleged offender is a national of that State, and no other State has a basis under Article 14, paragraph 1 of this Convention, to exercise jurisdiction, except that provisions of Articles 17-21 of this Convention shall, as appropriate, apply in those cases.⁴⁰⁴¹

Article 8 – Sanctions and measures

1. Each State Party shall adopt such measures as may be necessary to make the offences set forth in Articles 4-7 punishable by effective, proportionate and dissuasive penalties.

2. Previous final convictions pronounced in foreign States for offences referred to in the present Convention may, to the extent permitted by domestic law, be taken into account for the purpose of determining the sentence in accordance with domestic law.⁴²

Article 8bis – Confiscation⁴³

Article 9 – Conditions and safeguards

1. Each State Party shall ensure that the establishment, implementation and application of the criminalisation under Articles 4-7 of this Convention are carried out consistently with the ⁴⁴ rule of law, human rights and fundamental freedoms, in particular the right to freedom of expression, freedom of association and freedom of religion as set forth in international law and practice, including the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms or any other instrument in the field of human rights that it is a Party to.

2. The establishment, implementation and application of the criminalisation under Articles 4-7 of this Convention should furthermore be subject to the principle of proportionality, with respect to the legitimate aims pursued and to their necessity in a democratic society,⁴⁵ and should exclude any form of arbitrariness or discriminatory or racist treatment.

Article 10 – Liability of legal entities⁴⁶

1. Each State Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability of legal entities for participation in the acts criminalised in Articles 4-7 of this Convention.⁴⁷

2. Subject to the legal principles of the State Party, the liability of legal entities may be criminal, civil or administrative.

3. Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offences.

4. Each State Party shall, in particular, ensure that legal entities held liable in accordance with this Article are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.⁴⁸

Article 11 – Prevention of justification⁴⁹

Article 11bis – Non abuse of the refugee status^{50 51}

Article 12 – Protection, compensation and support of victims of acts of terrorism

Each State Party shall adopt such measures as may be necessary to protect and support the victims of acts of terrorism that have been committed within its own territory. These measures may include, through the appropriate national schemes and subject to domestic legislation, inter alia, financial assistance and compensation for victims of acts of terrorism and their close family members.

Article 13 – Duty to investigate⁵²

1. Upon receiving information that a person who has committed or who is alleged to have committed an offence within the scope of application of the present Convention may be present in its territory, the State Party concerned shall take such measures as may be necessary under its domestic law to investigate the facts contained in the information.

2. Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate measures under its domestic law so as to ensure that person’s presence for the purpose of prosecution or extradition.

3. Any person regarding whom the measures referred to in paragraph 2 are being taken shall be entitled to:

1. communicate without delay with the nearest appropriate representative of the State of which that person is a national or which is otherwise entitled to protect that person’s rights or, if that person is a stateless person, the State in the territory of which that person habitually resides;

2. be visited by a representative of that State;

3. be informed of that person’s rights under subparagraphs a. and b.

4. The rights referred to in paragraph 3 shall be exercised in conformity with the laws and regulations of the State in the territory of which the offender or alleged offender is present, subject to the provision that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under paragraph 3 are intended.

5. The provisions of paragraphs 3 and 4 of the present Article shall be without prejudice to the right of any State Party having a claim of jurisdiction in accordance with Article 14 paragraph 1 (b) to invite the International Committee of the Red Cross to communicate with and visit the alleged offender.⁵³

Article 14 – Jurisdiction

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in this Convention:

a. when the offence is committed in the territory of that State;

b. when the offence is committed by a national of that State;⁵⁴

c. in the case where the alleged offender is present in its territory and it does not extradite him or her to a State Party whose jurisdiction is based on a rule of jurisdiction existing equally in the law of the requested State.⁵⁵

2. Each State Party may also establish its jurisdiction over such offences when the offence is committed by a stateless person who has his or her habitual residence in the territory of that State.⁵⁶

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.⁵⁷

4. When more than one Party claims jurisdiction over an alleged offence set forth in this Convention, the Parties involved shall, where appropriate, consult with a view to determining the most appropriate jurisdiction for prosecution⁵⁸.

Article 15 – Extradite or prosecute⁵⁹

1. The State Party in the territory of which the alleged offender is present shall, when it has jurisdiction in accordance with Article 14, if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a serious nature under the law of that State.

2. Whenever a State Party is permitted under its domestic law to extradite or otherwise surrender one of its nationals only upon the condition that the person will be returned to that State to serve the sentence imposed as a result of the trial or proceeding for which the extradition or surrender of the person was sought, and this State and the State seeking the extradition of the person agree with this option and other terms they may deem appropriate, such a conditional extradition or surrender shall be sufficient to discharge the obligation set forth in paragraph 1.

Article 16 – Extradition⁶⁰

1. The offences set forth in Articles 4-7 shall be deemed to be included as extraditable offences in any extradition treaty existing between any of the States Parties before the entry into force of this Convention. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be subsequently concluded between them.

2. When a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, the requested State Party may, at its option, consider this Convention as a legal basis for extradition in respect of the offences set forth in Articles 4-7. Extradition shall be subject to the other conditions provided by the law of the requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognise the offences set forth in Articles 4-7 as extraditable offences between themselves, subject to the conditions provided by the law of the requested State.

4. If necessary, the offences set forth in Articles 4-7 shall be treated, for the purposes of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territory of the States that have established jurisdiction in accordance with Article 14.

5. The provisions of all extradition treaties and arrangements between States Parties with regard to offences set forth in Articles 4-7 shall be deemed to be modified as between States Parties to the extent that they are incompatible with this Convention.

Article 17 – General principles for international co-operation

1. States Parties shall afford one another the greatest measure of assistance in connection with criminal investigations or criminal or extradition proceedings in respect of the offences set forth in Articles 4-7, including assistance in obtaining evidence in their possession necessary for the proceedings.⁶¹

2. States Parties shall co-operate with each other to the fullest extent possible under relevant law, treaties, agreements and arrangements of the requested State Party with respect to criminal investigations or proceedings in relation to the offences for which a legal entity may be held liable in accordance with Article 10 of this Convention in the requesting State Party.⁶²

3. Each State Party may give consideration to establishing mechanisms to share with other States Parties information or evidence needed to establish criminal, civil or administrative liability pursuant to Article 10.⁶³

4. States Parties shall carry out their obligations under Paragraph 1 in conformity with any treaties or other arrangements on mutual legal assistance that may exist between them. In the absence of such treaties or arrangements, States Parties shall afford one another assistance in accordance with their domestic law.

[Article 18 – Exclusion of the political exception clause]⁶⁴

Article 18bis – Discrimination clause⁶⁵

1. Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set forth in Articles 4-7 or for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person’s position for any of these reasons.⁶⁶

2. Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the person subject of the extradition request risks being exposed to torture.⁶⁷

3. Nothing in this Convention shall be interpreted either as imposing an obligation to extradite if the person subject of the extradition request risks being exposed to the death penalty or, where the law of the requested State does not allow for life imprisonment, to life imprisonment without the possibility of parole, unless under applicable extradition treaties the requested State is under the obligation to extradite if the requesting State gives such assurance as the requested State considers sufficient that the death penalty will not be imposed or, where imposed, will not be carried out, or that the person concerned will not be subject to life imprisonment without the possibility of parole.⁶⁸⁶⁹

Article 19 – Spontaneous information⁷⁰

1. Without prejudice to their own investigations or proceedings, the competent authorities of a Party may, without prior request, forward to the competent authorities of another Party information obtained within the framework of their own investigations, when they consider that the disclosure of such information might assist the receiving Party in initiating or carrying out investigations or proceedings, or might lead to a request by that Party under the Convention or its Protocols.

2. The providing Party may, pursuant to its national law, impose conditions on the use of such information by the receiving Party.

3. The receiving Party shall be bound by those conditions.

4. However, any Contracting State may, at any time, by means of a declaration addressed to the Secretary General of the Council of Europe, declare that it reserves the right not to be bound by the conditions imposed by the providing Party under paragraph 2 above, unless it receives prior notice of the nature of the information to be provided and agrees to its transmission.

[Article 20 … deleted ]⁷¹

[Article 21 …deleted]⁷²

Article 22 – Signature and entry into force

1. This Convention shall be open for signature by the member States of the Council of Europe and by non-member States which have participated in its elaboration.

2. This Convention is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

3. This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which five⁷³States, including at least three member States of the Council of Europe, have expressed their consent to be bound by the Convention in accordance with the provisions of paragraphs 1 and 2.

4. In respect of any signatory State which subsequently expresses its consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the expression of its consent to be bound by the Convention in accordance with the provisions of paragraphs 1 and 2.

Article 23 – Accession to the Convention

1. After the entry into force of this Convention, the Committee of Ministers of the Council of Europe, after consulting with and obtaining the unanimous consent of the Contracting States to the Convention, may invite any State which is not a member of the Council and which has not participated in its elaboration to accede to this Convention. The decision shall be taken by the majority provided for in Article 20 (d) of the Statute of the Council of Europe and by the unanimous vote of the representatives of the Contracting States entitled to sit on the Committee of Ministers.

2. In respect of any State acceding to the Convention under paragraph 1 above, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.

Article 24 – Territorial application

1. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Convention shall apply.

2. Any State may, at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory specified in the declaration. In respect of such territory the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of the declaration by the Secretary General of the Council of Europe.

3. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General of the Council of Europe. The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General of the Council of Europe.

Article 25 – Effects of the Convention⁷⁴

1. The present Convention supplements applicable multilateral or bilateral treaties or arrangements as between the States Parties, including the provisions of:

– the European Convention on Extradition, opened for signature in Paris on 13 December 1957 (ETS No. 24)

– the European Convention on Mutual Assistance in Criminal Matters, opened for signature in Strasbourg on 20 April 1959 (ETS No. 30);

– the Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, opened for signature in Strasbourg on 17 March 1978 (ETS No. 99).⁷⁵

2. If two or more States Parties have already concluded an agreement or treaty on the matters dealt with in this Convention or have otherwise established their relations on such matters, or should they in future do so, they shall also be entitled to apply that agreement or treaty or to regulate those relations accordingly. However, where States Parties establish their relations in respect of the matters dealt with in the present convention other than as regulated therein, they shall do so in a manner that is not inconsistent with the Convention’s objectives and principles.

3. Nothing in this Convention shall affect other rights, restrictions, obligations and responsibilities of a State Party and individuals under international law, including international humanitarian law.⁷⁶

[Article 26 – … deleted]⁷⁷

[Article 27 – …deleted]⁷⁸

Article 28 – Amendments of the Convention

1. Amendments to this Convention may be proposed by any State Party, and shall be communicated by the Secretary General of the Council of Europe to the member States of the Council of Europe, to the non-member States which have participated in the elaboration of this Convention, as well as to any State which has acceded to, or has been invited to accede to, this Convention in accordance with the provisions of Article 23.

2. Any amendment proposed by a State Party shall be communicated to the [follow-up mechanism],⁷⁹which shall submit to the Committee of Ministers its opinion on that proposed amendment.

3. The Committee of Ministers shall consider the proposed amendment and the opinion submitted by the [follow-up mechanism]⁸⁰and, following consultation with the non-member States Parties to this Convention, may adopt the amendment.

4. The text of any amendment adopted by the Committee of Ministers in accordance with paragraph 3 of this Article shall be forwarded to the States Parties for acceptance.

5. Any amendment adopted in accordance with paragraph 3 of this Article shall come into force on the thirtieth day after all States Parties have informed the Secretary General of the Council of Europe of their acceptance thereof.

Article 29 – Revision of the Annex⁸¹

1. In order to update the list of treaties in the Annex, amendments may be proposed by any Contracting State or by the Committee of Ministers. They shall be communicated by the Secretary General of the Council of Europe to the Contracting States.

2. After having consulted the non-member Contracting States and, if necessary, the CDPC, the Committee of Ministers may adopt a proposed amendment by the majority provided for in Article 20.d of the Statute of the Council of Europe. The amendment shall enter into force following the expiry of a period of one year after the date on which it has been forwarded to the Contracting States. During this period, any Contracting State may notify the Secretary General of the Council of Europe of any objection to the entry into force of the amendment in its respect.

3. If one-third of the Contracting States notifies the Secretary General of the Council of Europe of an objection to the entry into force of the amendment, the amendment shall not enter into force.

4. If less than one-third of the Contracting States notifies an objection, the amendment shall enter into force for those Contracting States which have not notified an objection.

5. Once an amendment has entered into force in accordance with paragraph 2 of this Article and a Contracting State has notified an objection to it, this amendment shall come into force in respect of the Contracting State concerned on the first day of the month following the date on which it has notified the Secretary General of the Council of Europe of its acceptance.

Article 30 – Settlement of disputes

1. The … (…) shall be kept informed regarding the interpretation and application of this Convention.

2. In case of a dispute between States Parties as to the interpretation or application of this Convention, they shall seek a settlement of the dispute through negotiation or any other peaceful means of their choice, including submission of the dispute to the … (…), to an arbitral tribunal whose decisions shall be binding upon the States Parties, or to the International Court of Justice, as agreed upon by the States Parties concerned.

Article 31 – Follow-up⁸²

1. The Conference of States Parties against Terrorism (hereinafter referred to as the “COSTER”) established pursuant to the Protocol of Amendment to the European Convention on the Suppression of Terrorism (ETS No. 190) is responsible for following the application of the Convention. The COSTER:

a. shall be kept informed regarding the application of the Convention;

b shall make proposals with a view to facilitating or improving the effective use and operation of this Convention including the identification of any problems therein, in close contact with the European Committee for Crime Problems (the CDPC);

c. shall make recommendations to the Committee of Ministers concerning the proposals for amendments to the Convention, and shall give its opinion on any proposals for amendments to the Convention submitted by a Contracting State in accordance with Article 28; at the latest three⁸³years after the present Convention enters into force, the COSTER shall, in co-operation with the States Parties, conduct a review of all of the Convention’s provisions and, if necessary, recommend any appropriate amendments.

d. shall, at the request of a Contracting State, express an opinion on any question concerning the application of the Convention;

e. shall assure the exchange of information on significant legal and policy developments pertaining to the fight against terrorism;

f. shall examine, at the request of the Committee of Ministers, measures adopted within the Council of Europe in the field of the fight against terrorism and, where appropriate, elaborate of proposals for additional measures necessary to improve international co-operation in the area of the fight against terrorism and, where co-operation in criminal matters is concerned, in consultation with the CDPC;

g. shall do whatever is necessary to facilitate a friendly settlement of any difficulty which may arise out of the execution of the Convention;

h. shall make recommendations to the Committee of Ministers concerning non-member States of the Council of Europe to be invited to accede to the Convention in accordance with Article 23;

i. shall keep the CDPC periodically informed about its work;

j. shall submit every year to the Committee of Ministers of the Council of Europe a report on the follow-up given to this Article in the application of the Convention.

2. The COSTER shall be assisted by the Secretariat of the Council of Europe in carrying out its functions pursuant to this Article.

3. Pending the entry into force of the Protocol of Amendment to the European Convention on the Suppression of Terrorism (ETS No. 190), the Committee of Experts on Terrorism (the CODEXTER) is responsible for following the application of the Convention and, in particular, for the fulfilment of the obligations mentioned above.

Article 32 – Denunciation⁸⁴

1. Any State Party may, at any time, denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.

2. Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General of the Council of Europe.

Article 33 – Notification

The Secretary General of the Council of Europe shall notify the member States of the Council of Europe, the non-member States which have participated in the elaboration of this Convention as well as any State which has acceded to, or has been invited to accede to, this Convention of:

a. any signature;

b. the deposit of any instrument of ratification, acceptance, approval or accession;

c. any date of entry into force of this Convention in accordance with Articles .. and ..;

d. any declaration made under Article .. or reservation made in accordance with Article …;