Strasbourg, 10 June 2004

CEPEJ(2004)13REV1

European Commission for the Efficiency of Justice (CEPEJ)

Evaluation Report on the efficiency of the national judicial systems in their responses to terrorism

Document prepared by Mr Ph. de Koster (Belgium)

Introduction

1. Following the adoption of Resolution No. 1 by the European Ministers of Justice at their 25th Conference (Sofia, October 2003) and the Decision taken by the Ministers’ Deputies at their 864th meeting, an evaluation report on the efficiency of the national judicial systems in their responses to terrorism was requested.

2. At its third meeting, held in Strasbourg on 26 January 2004, the Bureau of the CEPEJ stated that the report should outline the general features of anti-terrorist policies in Europe, show the broad European trends in the various legal and judicial reactions to terrorism and formulate observations on the positive and negative aspects of those trends (in particular by evaluating the empirical indicators of the efficiency of the measures adopted by the States) and, last, make whatever suggestions might be appropriate concerning the measures to be taken at national and international level to strengthen the reactions of the national legal systems to terrorism.

3. In drawing up the report, the author took into account the contributions provided by the member States and the observers from the Council of Europe for the 25th Conference of Ministers of Justice of the Council of Europe, held in Sofia on 9 and 10 October 2003. 1

4. In order to make such an evaluation, it is necessary to have precise information. It must be pointed out that as yet there is no complete database on certain elements capable of providing a precise description of the judicial and legal responses of the States in the face of terrorism. At its meeting on 29 March to 1 April 2004, Codexter drew up a draft structure for national profiles on the legal and institutional capacity to fight terrorism. 2 Therefore, pending the establishment of that database, the consultant had no option other than to consult the site of the Anti-Terrorist Committee of the United Nations Security Council. It did not appear necessary when drawing up this report to draft a questionnaire which would have duplicated the work of Codexter. Consulting the ATC website is also consistent with the cooperation entered into on the occasion of the visit of the President of the ATC to the Council of Europe on 21 November 2003.

5. Next, since the member States of the European Union are also members of the Council of Europe, it also appeared necessary to take account of the developments associated with the Framework Decision of 13 June 2002 on combating terrorism. That is also consistent with the cooperation established between the Council of Europe and the European Union.

6. Last, it is necessary to take account of the absolute requirement to bring the fight against terrorism within the framework of respect for fundamental rights and freedoms. The European Court has defined in its case-law the factors which must be taken into account when striking a balance between respect for human rights and an efficient fight against terrorism. The Guidelines on human rights and the fight against terrorism adopted by the Committee of Ministers on 11 July 2002 at the 804th Meeting of Ministers’ Deputies is the most relevant instrument in that regard and summarises the framework of judicial or legal action to be taken by the States.

The yardstick of the efficiency of the national legal systems in their response to terrorism: empirical criteria for evaluation

7. The pilot grid for the evaluation of judicial systems adopted by the CEPEJ contains certain questions which may be of the sort to sustain the debate of the question of the efficiency of criminal justice but, owing to the general nature of the grid, which covers all aspects of justice in the wide sense, an analysis of the replies does not seem to be the only useful reference when attempting to determine the trends, the progress and indeed the additional steps in order to evaluate the proper functioning of criminal justice in the face of the challenge represented by terrorism.

8. Speaking at a conference in The Hague on “The efficiency of justice within the Council of Europe and its member States”, the Deputy Secretary-General of the Council of Europe stated that “justice must be readily accessible, fair and efficient. The challenge lies in finding the proper balance between those objectives, so that they may best serve the interests of our societies”.

9. Those habitual criteria assume particular significance where the fight against terrorism is concerned. In this specific context, access to justice must be guaranteed to the victims of terrorist attacks. Justice must remain fair and observe, in particular, all the elements of a fair trial, even vis-à-vis the terrorists. Last, justice has a duty to be efficient: that means that all the investigative means appropriate to both the discovery and the suppression punishment of terrorist offences must be used in such a way that they also comply with the principles deriving from the European Convention on Human Rights.

10. As early as 1990, Antonio Cassese said that “terrorism has a profoundly negative impact on the international community, in the sense that it upsets the rules of the game established by the sovereign States”. 3 In the face of terrorism, two possible options emerge: force or the law. By way of preliminary observation to this study, it must be noted that the member States of the Council of Europe chose at the outset the option of the law, thus taking the view that “bringing the terrorist before a judge is the worst of punishments”. 4 Their decision to accord pre-eminence to the State based on the rule of law in the fight against terrorism was no doubt made easier by the fact that the European Court of Human Rights has on numerous occasions stated its position in defining the obligation placed on member States to fight terrorism and the democratic limits on the means to be employed.

11. It is useful to recall the essential lessons to be derived from the case-law of the European Court of Human Rights. In a number of judgments, the Court, “having taken note of the growth of terrorism in modern society, has already recognised the need inherent in the Convention system, for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights”. 5

12. In a wider context, it is no doubt also necessary to recall the intangible fundamental principle of the right to life enshrined in Article 2 of the Convention, which entails “the primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions”. 6

13. The European Court of Human Rights has frequently stated its position on the need to combat the development of terrorism. It has approved the fight against terrorism on the ground that “[d]emocratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional circumstances, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime”. 7

14. The Court has held that it is not its place “to substitute for the assessment of the national authorities its own assessment of what might be the best policy in the field of investigation of terrorist crime. … A certain margin of appreciation in deciding what measures to take both in general and in particular cases should be left to the national authorities”. 8 That judgment is highly significant, since it leaves to the States the choice of the means to be employed, while the Court reviews only the compatibility of the measures adopted with the principles of the European Convention on Human Rights. None the less, the Court does not give the States a blank cheque and has held that “it must, with due regard to the circumstances of each case and a State’s margin of appreciation, ascertain whether a fair balance has been struck between the individual’s fundamental right to freedom of expression and a democratic society’s legitimate right to protect itself against the activities of terrorist organisations”. 9

15. On the basis of those acquis, the Guidelines on human rights and the fight against terrorism identified the present limits of the interference with fundamental freedoms entailed by the means used in the fight against terrorism. 10

16. It is therefore possible to speak of an efficient response by the judicial systems only in so far as the response does not overstep the bounds thus determined, while at the same time taking into account the evolutionary nature of the case-law of the Court.

Trends in the criminal policy of the States in the face of terrorism

17. It would appear that there is only one single trend in criminal policy in the face of terrorism: a terrorist act is made a criminal offence and thus entails criminal proceedings, while recalling that death penalty cannot be applied anymore, in all circumstances, according to Protocols 6 & 13 of the European Convention of Human Rights and Fundamental Freedoms and that torture is forbideen according to Article 3 of this Convention, as it is underlined by the Court in its Judgements Aksoy v./ Turkey of 18 December 1996 and Ocalan v./ Turkey of 12 March 2003.

18. The need for criminal sanctions against certain acts of international terrorism was first expressed in Recommendation no. 703 of 16 May 1973 of the Parliamentary Assembly of the Council of Europe. 11 Since that time the Parliamentary Assembly has constantly referred to the need for vigorous and rigorous action against terrorism consistent with the values forming the basis of democracies. 12

19. However, the twofold moral and legal condemnation of terrorism has led to the difficult question of an appropriate definition of terrorism as the basis for making it a criminal offence. “No matter what cause is being defended, it will always be dishonoured by the blind massacre of an innocent crowd”. 13 Clearly, no cause is worthy of being defended by blind violence, no right and no freedom merits being asserted by the deliberate disregard of the natural law. There is no need to be reminded that Article 2 of the Convention - an intangible provision of the Convention – requires that each State guarantee its citizens the right to life.

20. The reaction against the terrorist phenomenon is not only a moral requirement but also a legal requirement. Terrorism cannot be justified and it must also be condemned by the law. This condemnation by the law is based on terrorism being made a criminal offence. The relevant provision sets out, in general, abstract terms, certain acts which are made criminal offences by a specific legal measure. If the existence of a criminal offence assumes the existence of a specific measure defining the offence, the offence may be conceived as the actual breach of a rule defining a criminal offence; and that breach will be characterised as criminal only where on certain additional conditions which the legislature may prescribe are satisfied. These general principles remain applicable in order for the terrorist act to constitute a criminal offence. It is only recently that terrorism has been designated as a true sui generis offence, whether by the draft global convention or by the Framework Decision of the European Union. 14

21. That appears all the more necessary in the light of Article 7 ECHR, which provides that offences and penalties are to be provided for by the law. There can have been no criminal offence unless the unlawful conduct was so defined in a legal provision. A penalty cannot be imposed if it has not been prescribed by the criminal law. 15 These principles form part of the general principles of criminal law in civilised countries. Article 7 also provides that the criminal law must not be extensively construed to the accused’s detriment, for instance by analogy. 16 It follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision what acts and omissions will make him liable. 17

22. For many years a sector-based approach to the definition of terrorism prevailed, pending the global convention of the United Nations. In a detailed study of the benefits of drawing up a Council of Europe convention making terrorism a criminal offence, Professor Tomuschat drew up an exhaustive inventory of the attempts to reach a criminal definition of terrorism. 18

23. However, in the context of the negociation of international treaties, the issue of reservations has a direct impact on the efficiency of international cooperation, and then on the judicial answer. The Secretary General of the Council of Europe has underlined at several occasions that attention must be paid to this issue19.

In this context, the Decision of the Committee of Ministers at the level of Deputies on the activities of the Council of Europe in the fight against terrorism20can be noted. Within the framework of the examination of the follow up to be given to the Declaration of the Committee of Ministers of 12 September 2001 on the fight against international terrorism, this Decision instructed the European Observatory of reservations to international treaties within the CAHDI to examine the question of reservations to regional and universal conventions on terrorism and proceed to exchanges of views on conventions on terrorism under preparation within the United Nations, with a view to coordinating Member States’ positions.

The CAHDI examines the list of reservations and declarations to relevant international treaties on the fight against terrorism which appears in Document CAHDI (2004)3.

24. Independently of the work being carried out within the Council of Europe, 21 Council Decision 2002/475/JHA of 13 June 2002 on combating terrorism 22 represents a significant advance towards establishing a supranational definition. The decision is designed to harmonise the laws of the member States by establishing minimum rules concerning the constituent elements of criminal offences and penalties in relation to terrorist offences. The framework decision applies to any terrorist act committed deliberately and capable of harming an international organisation or a country. Such acts must be committed with the intention of intimidating the population or with seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of the country (causing death, causing physical injury, kidnapping or hostage-taking, blackmail, manufacture of weapons, carrying out attacks, threatening to commit any of the abovementioned acts …). These offences may be committed by one or more individuals against one or more countries. The framework decision defines a terrorist group as a structured group of more than two persons, established over a period of time and acting in concert. Furthermore, inciting, aiding or abetting in and attempting the commission of a terrorist act are punishable. In order to punish terrorist acts, member States must make provision in their national legislation for effective, proportionate and dissuasive criminal penalties, which may entail extradition, and also ensure that allowances are made for mitigating circumstances (cooperation with the judicial and administrative authorities, identification of evidence and other offenders …). The member States undertake to adopt the necessary measures to establish their jurisdiction over terrorist acts, including in cases where they refuse to extradite their own nationals, and also to coordinate their activities and to establish their jurisdiction in order to centralise the proceedings in a single member State where a number of member States have jurisdiction. Member States must ensure appropriate assistance for victims of the offence and their families. 23

25. The implementation of that framework decision represents a step forward in the context of a concerted European approach to a definition which may serve as a basis in the negotiations within the Council of Europe towards the determination of an efficient European criminal policy with a view to more active cooperation.

26. The creation of the European arrest warrant by the framework decision of 13 June 2002 24 has also played a part in the emergence of a new concept of judicial assistance. It is a fundamental innovation which seeks to change the political act of extradition into to an essentially judicial act. The warrant must allow the persons sought to be transferred directly from judicial authorities to judicial authorities, while their fundamental rights and freedoms must be respected. 25 The framework decision radically alters the nature of judicial cooperation in criminal matters: the procedure no longer involves traditional cooperation but entails rather the direct execution of a judicial decision throughout the entire European Union. The traditional principle that the offence committed must be an offence in both countries has been largely abandoned: the person must be handed over even if the acts in respect of which the warrant was issued do not constitute an offence under the law of the request State, provided that the offence is included in the positive list of 32 extraditable offences and is punishable by three years’ imprisonment in the requesting State.

27. Innovate though it may be, its application does not always appear to be obvious. Thus, a number of European arrest warrants have been issued by the Spanish authorities and sent to the Belgian authorities, seeking the extradition of persons convicted in Spain of terrorist offences. It is apparent that the mutual recognition of judicial decisions within an integrated area is merely a sentiment which may be imposed by the law. In the course of the proceedings, the court declared that some warrants could not be executed, on the ground that there might have been a failure to respect human rights. 26 It should be noted, to the extent necessary, that the framework decision contains a clause affirming respect for fundamental rights and stating that it observes the principles recognised by Article 6 of the Treaty on European Union.

28. As at 7 May 2004, and thus taking into account the enlargement of the European Union, the state of transposition of the essential framework decisions was as follows:

 

Implementation of the Law on the European arrest warrant with effect from:

State of transposition of the framework decision on the fight against terrorism

Germany

-

Bill (February 2004)

Austria

1 May 2004

Transposed

Belgium

(1 January 2004)

Transposed (Law of 19 Dec. ’04)

Denmark

1 January 2004

Transposed

Spain

1 January 2004

Transposed

Finland

1 January 2004

Transposed

France

12 (Paris)/13 March 2004

Transposed

Greece

-

-

Ireland

1 January 2004

Bill (February 2004)

Italy

-

Transposed

Luxembourg

26 March 2004

Transposed

Netherlands

12 May 2004

-

Portugal

1 January 2004

Transposed

United Kingdom

1 January 2004

Transposed

Sweden

1 January 2004

Transposed

     

Cyprus

1 May 2004

-

Estonia

-

-

Hungary

1 May 2004

Transposed (Criminal Code 1 March 2003)

Latvia

-

-

Lithuania

1 May 2004

-

Malta

-

-

Poland

1 May 2004

-

Czech Republic

-

-

Slovakia

-

-

Slovenia

1 May 2004

-

29. An essential aspect of the right to a fair trial which must be ensured in the application of the two framework decisions is that the rights of suspects and persons involved in criminal proceedings are taken into account.

30. With a view to ensuring a uniform respect for the right to a fair trial, the Commission on 28 April 2004 adopted its first proposal for a framework decision centred on the rights of the defence in the field of criminal justice. The proposal, which will be transmitted to the Council and the European Parliament, concerns access by suspects and persons involved to a lawyer, access by persons involved who are of foreign origin to the services of an interpreter and a translator, the protection of persons who are unable to understand or follow the proceedings, consular assistance for foreign persons in custody, informing the persons concerned of their rights and assessing and monitoring the situation. The objective is to arrive at equivalence between the member States, even if initially it will be “common minimum standards” that will be adopted, which will leave the member States a certain latitude to guarantee, on that basis, that fair trials take place on their territory.

31. The proposal for a framework decision provides, in particular, for access to a lawyer throughout all the criminal proceedings, which the proposal defines as “all proceedings taking place in the European Union for the purpose of establishing the guilt or innocence of a person suspected of having committed an offence or of adjudicating following a plea of guilty to a criminal charge”.

32. The proposal requires that member States draw up a brief standard declaration in writing setting out the fundamental rights (and listing, under headings common to all member States of the EU, the national provisions applicable), and that they ensure that all suspects receive this written document, in a language which they understand, as soon as possible and in any event before being questioned. That should enable suspects to ensure more easily that their rights are respected, since they would be informed of their rights by means of an accessible and understandable form, even if they are not nationals of the State in which they were arrested.

33. Following the attacks of 11 September 2001, the legal response of States took the form of an increase in the ratification of the relevant international instruments on the fight against terrorism and then, at the level of the European Union, of the adoption of a criminal offence of terrorism and the emergence of the European arrest warrant and, at the level of the Council of Europe, by the updating of the 1977 Convention on the suppression of terrorism. This movement led to the emergence of the outline of a democratic response to terrorism which respects fundamental rights and freedoms. The attacks in Madrid on 11 March 2004 accentuated the need to coordinate the criminal-law response to terrorism by placing greater emphasis on strengthening inter-State cooperation.

34. How can international or European cooperation be improved? Although numerous instruments designed to establish a general framework exist, a crucial need is felt in respect of the exchange of information on terrorist activities. In that regard, mention should be made of the recent initiative of the European Commission, which on 29 March 2004 submitted a proposal for a Council Decision on the exchange of information and cooperation concerning terrorist offences. 27 Without awaiting the establishment of a European criminal record, the Commission proposes to take steps to improve the exchange of information between member States and the bodies responsible, at European Union level, for combating terrorism.

35. Relying on Council Decision 2003/48/JHA of 19 December 2002 on the implementation of specific measures for police and judicial cooperation to combat terrorism, which helped to improve the exchange of information on criminal investigations and proceedings concerning the “persons, groups or entities” listed in the annex to Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism, it is appropriate to extend the scope of information exchanges to all terrorist offences within the meaning of the framework decision making terrorism a criminal offence. The exchanges will no longer concern of a list of persons and entities but will concern all terrorist offences, those relating to a terrorist group, including all forms of financing for its activities, and those linked to terrorist activities, such as inciting, aiding and abetting in and attempting the commission of such offences.

36. These exchanges of information should concern all the stages of the procedure, including criminal convictions. Europol and Eurojust should receive this information, whether it relates to investigations, proceedings or convictions for terrorist offences. The information should provide input for ongoing investigations and all useful links and comparisons with current proceedings should be made.

37. According to the Commission, the fight against terrorism and the most serious forms of crime assumes a qualitative and quantitative improvement in information exchanges which respects fundamental rights, and particularly data protection, so that the services concerned are able to have fuller and more up-to-date information.

38. Terrorism calls for unambiguous reactions: as regards prevention, of course, but also as regards suppression, even though reference has still recently been made to the “impossible war against terrorism”. 28 The fight against terrorist crimes can no longer be conducted by individual States. Although the fight began at national level, nowadays the development of the terrorist phenomenon on a transnational scale requires an overall policy bringing together the various States of a continent. European criminal law is constantly evolving towards the development of a true European anti-terrorist law.

39. The evolution of European criminal law has consisted in isolating terrorist offences from criminal offences. The European Convention on the suppression of terrorism drawn up by the Council of Europe 29 has “assist[ed] in the suppression of acts of terrorism where they constitute an attack on the fundamental rights to life and liberty of persons” 30. While the drafting of that Convention was justified by the particularly worrying increase in acts of terrorism on an international scale and of a particularly odious nature, 31 its amendment by the Protocol thereto signed on 15 May 2003 32 still pursues the same objectives and still expresses the idea that extradition is a particularly effective measure in fighting terrorism. 33 The introduction of the European arrest warrant within the European Union represents a further step forward which combines the principle of mutual recognition of criminal decisions which will form the basis for the construction of an area of freedom, security and justice within the European Union. Mutual recognition relies above all on the mutual confidence based on respect for common values. This climate of mutual confidence also exists between the member States of the Council of Europe, and it is therefore not overoptimistic to hope that we shall see a pan-European arrest warrant, as envisaged in the draft Recommendation 1644 (2044) of the Parliamentary Assembly of the Council of Europe. 34

40. Although significant progress has been made in the field of extradition, the fact remains that the criminal definition of terrorism is still the central issue from the aspect of an appropriate legal response in the fight against terrorism. From the aspect of Article 7 ECHR, which provides that offences and penalties must be provided for by law, there can have been no criminal offence unless the unlawful conduct was defined as such in a legal provision. A penalty cannot be imposed if it has not been provided for in criminal law. 35. These principles form part of the general principles of the criminal law of civilised countries. Article 7 ECHR also prohibits the criminal law from being construed extensively to the accused’s detriment, for instance by analogy, 36 as, moreover, does Article 22 § 2 of the Statute of the International Criminal Court. It is therefore essential that an offence be clearly defined by the law. This condition is satisfied where the individual can know from the wording of the relevant provision what acts and omissions will make him liable. 37

41. Without a precise definition of terrorism, it is difficult to establish a terrorist offence and just as difficult to prepare a legal response based on respect for the principles of a State governed by the rule of law. The establishment of a “European” criminal offence of terrorism, as provided for in the Framework Decision of 13 June 2002, is therefore an important step in reconciling the fight against terrorism and respect for fundamental rights and freedoms.

42. The lack of a pan-European criminal offence based on the acquis of the European Union and the United Nations and developed in the framework of the Council of Europe is likely to prevent the emergence of a transnational judicial response in keeping with the European Convention on Human Rights.

43. Notwithstanding the difficulties involved in defining terrorism for the purpose of making it a criminal offence, it is extremely desirable that terrorism be made a pan-European criminal offence. The definition of such a criminal offence would have the advantage of extending the work carried out by the European Union and would show the common commitment to waging an effective fight against terrorism. It would have the further advantage that in the sensitive area of terrorism it would be possible to abandon the principle that the offence in respect of which extradition is sought must be an offence in both of the countries concerned; and the measure defining the offence would constitute a harmonised provision whose conformity with Article 7 ECHR would be amenable to review by the Court.

The choices of an efficient legal response in the face of terrorism

44. While it is undeniable that States are under an obligation to combat terrorism, and while it is clear that the way chosen is suppression when terrorist acts constitute acts of violence capable of causing death or serious physical injury, committed in the context of an individual or joint enterprise, with the aim of creating terror in the population, 38 it is plain that the States’ legal response will lead them to think of structures or of effective systems.

45. In order to attack terrorism, it is clearly necessary to have a proper understanding of its phenomena, its networks or its structures, but in particular to determine the intentions and aims of the terrorist groups. Ascertaining those intentions and aims appears to constitute the main difficulty in the context of terrorist investigations, apart from the fact that it is necessary to find the person or persons responsible for the acts. Does that difficulty justify establishing a special anti-terrorist law? What information is capable of constituting proof of terrorist intention? Owing to the specific nature of terrorism, is it necessary to form specialist or centralised services or, rather, to operate with general services? So many questions calling for an answer which, in turn, will make it possible to measure the efficiency of the action of the State in the face of terrorism.

46. First of all, is it necessary to develop a law on criminal procedure specific to the fight against terrorism?

47. At its third meeting on 11 and 12 April 2002, the GMT stated that investigations into terrorist activities encounter serous problems exacerbated by the frequent links between terrorism and other forms of crime. 39 Terrorism has at least one feature in common with organised crime: it involves structured criminal organisations and rarely isolated individuals. In the context of the fight against money laundering, the methods used by terrorist groups to launder money originating in crime appear to be identical to those used by organised crime. 40 However, although the methods may be the same, the two forms of criminal activity differ in the ultimate objectives which they pursue.

48. The Court has taken the view that terrorist crime constitutes an exceptional situation threatening democratic societies which entails for the State the need to be able to attack those situations effectively. 41 Consequently, the powers of surveillance and also other temporary or unusual restrictions appear prima facie to be necessary in a democratic society facing an exceptional situation like terrorism. 42 However, such restrictions entail the risk of destroying democracy on the ground of defending it. Accordingly, not everything is allowed in the fight against terrorism: it is necessary to take into account the pre-eminence of the law, the common concept, and of common respect for human rights. It is therefore necessary to strike a fair balance between respect for the rights of the individual and the protection of the democratic society. 43 The Court has no intention of allowing the fundamental principles established by the European Convention on Human Rights to be ignored.

49. There is no evidence that, in the context of the fight against terrorism, the States’ response has led to the emergence of special criminal procedures. What are apparent, rather, are derogations or elements of flexibility, which were already evident in the more general context of the fight against certain serious forms of organised crime in the strict framework of the European Convention on Human Rights for the purpose of reconciling the requirements of the fight against terrorism and respect for fundamental rights.

50. First, it follows from the judgments of the Court that all of the law relating to organised crime, including its terrorist aspects, is subject to the ordinary law on the basis of Article 15 § 2 of the Convention, which, “except in cases of war or in cases of other public danger threatening the life of the nation, does not allow the States to derogate from certain rights such as the right to the integrity of the person”. According to the European Court, “the requirements of the investigation and the undeniable difficulties in the fight against crime, particularly in relation to terrorism, cannot have the effect of limiting the protection due to the physical integrity of the person”. 44 That is a very important decision, because while it recognises the difficulties involved in investigating terrorist matters, it states that the law relating to terrorism remains subject to the ordinary law.

51. Second, the Court has attempted to reconcile the rights guaranteed by Articles 6 and 8 of the ECHR as regards the means of investigation, which must be adapted to the specific features of investigations carried out in connection with the fight against terrorism. On the occasion of a study into the use of special investigation techniques, the Council of Europe, within the Committee of Experts on special investigation techniques in relation to acts of terrorism (PC-TI), examined the ways in which the various conflicting requirements were reconciled, and reference is made to that document. 45

52. It may be thought that the need to develop a special law in the context of the fight against terrorism cannot be justified, as such a legal regime would not be compatible with the fundamental principles of the European Convention on Human Rights. The European Court may accept adjustments or specific limited derogations, provided that any such relaxation of the general rule is justified in the context of the legitimacy of the fight against terrorism. The court has held that it was not for it “to substitute for the assessment of the national authorities its own assessment of what might be the best policy in the field of investigation of terrorist crime. … A certain margin of appreciation in deciding what measures to take both in general and in particular cases should be left to the national authorities”. 46 However, the recognition of a margin of appreciation does not amount to a blank cheque, since the Court will satisfy itself that the States are making proper use of it by applying the principle of proportionality of the measure to the aim pursued, which seems to constitute the point of reference for the purpose of determining the compatibility of exceptional measures necessitated by the fight against terrorism.

53. It will readily be seen that while the choice of the response is the responsibility of the State, which remains in control, it is absolutely essential that those choices are consistent with the European Convention on Human Rights. The Council of Europe Guidelines on human rights and the fight against terrorism constitute the reference point against which the legal response of each State must be measured.

54. It is recommended that the member States bear in mind the need to reconcile the efficiency of the fight against terrorism with respect for rights and fundamental freedoms by ensuring that their choices are consistent with the Council of Europe Guidelines on human rights.

State structures responsible for the fight against terrorism

55. Apart from the more or less intrusive means of investigation, the structures set up to investigate terrorist activities assume particular importance in the light of the features of terrorism. Terrorism is a constantly changing phenomenon and transnational offence. 47 Even though national, and indeed local terrorism, has not vanished, recent terrorism relies on outside factors to carry out its acts. In particular, the attacks of 11 September 2001 and those of 11 March 2004 revealed the existence of transnational networks. Terrorist movements must be financed. According to the FATF, an individual with sufficient financial means may also provide substantial financial assistance to terrorist groups, as is apparently the case of the terrorist attacks of 11 September. Osama ben Laden, who is regarded as the mastermind behind those attacks, has apparently devoted significant amounts from his personal fortune to setting up and supporting the terrorist network Al Quaida, and also the Taliban regime which held power in Afghanistan. 48 Next, ad hoc links may be increasingly formed with organised crime, especially with a view to securing financial resources. 49 Last, a further significant feature is its instantaneous impact, relayed by the media.

56. The fight against terrorism therefore also entails the fight against the financing of terrorism. By taking criminal or preventive action against the financing of terrorism, it is possible indirectly to restrict the commission of more serious offences. The ratification of the United Nations Convention on the financing of terrorism marked a substantial step towards arriving at a legal definition of the offence of financing terrorism. The work carried out in preparing the Protocol amending the Convention of the Council of Europe on Laundering, Search, Seizure and Confiscation of the proceeds from crime 50 sought in particular to extend the competence of the financial intelligence units to the financing of terrorism while setting up a global framework allowing better cooperation in the light of the different nature of the financial intelligence units. 51 The development of a policy of preventing and suppressing the financing of terrorism constitutes an important component of the legal response of the States in the face of terrorism.

57. Terrorism is a complex phenomenon requiring a detailed knowledge of the organisation, reasons, links and, of course, the persons concerned. The political motive is also an important element of making terrorism a crime and evidence of this motive will have to be adduced before the court. Therefore, in the face of a complex phenomenon which presupposes the use of specific and exceptional means of investigation, it is necessary to promote structures based on the specialisation of those taking part.

58. In taking account of the fight against terrorism and its financing, and also of the need to obtain for information on the political motives of the groups, it is worth attempting to gain an overall view of the services within the States which are in any way involved in the fight against terrorism.

59. Thus far, there has been no systematic analysis of all the provisions of criminal procedure and of judicial organisation which govern the fight against terrorism. The Council of Europe proposes to set up such an index within Codexter. On 28 November 2002 the European Union adopted a decision 52 establishing a mechanism for evaluating the legal systems and their implementation at national level in the fight against terrorism and the procedure is under way. 53 The only items to have been used are the reports supplied to the Anti-Terrorist Committee of the United Nations Security Council. Pending the availability of more complete data, that analysis must be viewed with all due reservation and represents a sketch. This table should be supplemented and amended in accordance with the reactions of the States and a specific questionnaire should be drawn up for this purpose.

60. It may however be stated, with all necessary prudence, that there is a definite tendency towards the centralisation of cases within specialist institutions. France and Spain are of particular interest, since centralisation in those countries affects the prosecution authorities as well as the courts responsible for investigating offences and the trial courts. However, it appears that, although the jurisdiction of the Audiencia Nacional in Spain is exclusive of the jurisdiction of the other courts, the jurisdiction of the Paris courts exists alongside the jurisdiction of the other French courts. These differences show that it is possible to have diversified responses which tend towards efficiency. In Belgium, on the other hand, the model of centralisation concerns only the prosecution authorities – in this instance the Federal Attorney General – but does not affect either the investigating courts or the trial courts.

61. Furthermore, the choice to set up centralised authorities is also advocated within the European Union, by means of both Europol and Eurojust. Centralisation has also come about by the creation of joint investigation teams of police 54 Council Decision 2003/48/JHA of 19 December 55 on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP provides that each member State is to designate, first, a specialised service within its police services which is to have access to information concerning criminal investigations conducted by law enforcement authorities with respect to terrorist offences involving any of the persons or entities mentioned in the list set out in Common Position 2001/931/CFSP and, second, either a Eurojust national correspondent for terrorism matters or an appropriate judicial or other competent authority who is to have access to information concerning criminal proceedings conducted by the judicial authorities and involving the persons or entities mentioned in the list set out in Common Position 2001/931/CFSP.

62. The complex and transnational nature of terrorism justifies the specialisation of the judges and certainly argues in favour of a policy of centralisation. That assertion serves only to express a preference and not a value-judgment. However, the specialisation and centralisation of the authorities responsible for the fight against terrorism may be justified by the need for an improved exchange of information, by a more rapid reaction, by better knowledge of the matter, but above all by the prudence which must be exercised when using the concept of terrorism.

63. The development of the work of Codexter (profiling) with a view to the rapid establishment of a data base which would allow an overall analytic view of those conducting and involved in criminal proceedings against terrorists should be encouraged.

64. In the interest of the efficiency of criminal investigations in a transnational dimension, it appears advisable to recommend at least the setting-up of specialised central judicial entities.

65. Provisional summary table

 

Country

Reports - dates

Specialist police services

Specialist judicial authorities

Specialist financial intelligence units

Competent intelligence services

1

Albania

S/2001/1309 (31/12/2001) S/2002/973 (29/08/2002)

 

 

no (Directorate of the Ministry of Finance)

State intelligence services

2

Germany

S/2002/11 (02/01/2002) S/2002/1193 (24/10/2002) S/2003/671 (25/06/2003) S/2004/129 (20/02/2004)

Federal criminal police, Federal Office for the protection of the Constitution

Attorney General attached to the Constitutional Court

FIU Deutschland, police

Federal intelligence service

3

Andorra

S/2001/1244 (26/12/2001) S/2002/1047 (19/09/2002)

 

 

UPB, administrative

 

4

Armenia

S/2002/162 (12/02/2002) S/2003/146 (04/02/2003) S/2003/1044 (27/10/2003)

 

 

no (Central Bank)

 

5

Austria

S/2001/1242 (26/12/2001) S/2002/969 (29/08/2002) S/2003/276 (06/03/2003) S/2004/16 (13/01/2004)

Anti-terrorist Brigade
EDOK, Federal entity for the protection of the State and the fight against terrorism

Federal bureau of criminal investigations

 

Federal intelligence service

6

Azerbaijan

S/2001/1325 (31/12/2001) S/2002/1022 (13/09/2002) S/2003/1085 (13/11/2003)

 

Attorney General’s Office

 

 

7

Belgium

S/2001/1266 (27/12/2001) S/2003/526 (19/05/2003) S/2004/156 (27/02/2004)

Anti-terrorist interforce group

Federal Attorney General

CTIF-CFI, administrative

State Security

8

Bosnia-Herzegovina

S/2001/1313 (31/12/2001) S/2002/1086 (27/09/2002)

Service of special teams

 

no (Federal bank organisation)

Federal intelligence service

9

Bulgaria

S/2001/1273 (27/12/2001) S/2002/793 (19/07/2002) S/2003/632 (09/06/2003)

National service for the fight against organised crime

Central service for special investigations

BFI, administrative

National intelligence services

10

Cyprus

S/2001/1243 (24/12/2001) S/2002/689 (20/06/2002) S/2003/263 (07/03/2003) S/2004/86 (04/02/2004)

 

 

MOKAS, judicial

Central intelligence agency

11

Croatia

S/2001/1271 (27/12/2001) S/2002/727 (05/07/2002) S/2003/454 (25/04/2003) S/2004/128 (20/02/2004)

 

Attorney General’s Office

AMLD, administrative

 

12

Denmark

S/2001/1303 (08/01/2002) S/2002/789 (19/07/2002) S/2003/274 (06/03/2003) S/2004/119 (18/02/2004)

Directorate of civil defence

 

SOK, mixed

 

13

Spain

S/2001/1246 (24/12/2001) S/2002/778 (19/07/2002) S/2003/628 (09/06/2003)

 

 Audiencia nacional (specialist central court sitting in Madrid) to which investigating judges are attached

SEPBLAC, administrative

 

14

Estonia

S/2001/1315 (10/01/2002) S/2002/870 (01/08/2002) S/2003/275 (06/03/2002) S/2004/22 (13/01/2004)

Directorate-general for security

Ordinary criminal courts, composes of benches of three judges

RA, police

 

15

Former Yugoslav Republic of Macedonia

S/2001/1333 (31/12/2001) S/2002/1048 (19/09/2002)

(Special anti-terrorist unit within the army)

 

 

Intelligence agency

16

Federation of Russia

S/2001/1284 (27/12/2001) S/2001/1284/add.1 (18/01/2002) S/2002/887 (06/08/2002) S/2003/839 (27/08/2003)

 

Attorney General of the Federal of Russia

FMC, administrative

Intelligence service

17

Finland

S/2001/1251 (28/12/2001) S/2002/879 (01/08/2002) S/2003/279 (04/03/2003) S/2004/118 (18/02/2004)

National Bureau of investigation

Attorney General’s Office

MLCH, police

Security services responsible for intelligence

18

France

S/2001/1274 (27/12/2001) S/2002/783 (19/07/2002) S/2003/270 (10/03/2003) S/2004/226 (29/03/2004)

Unit for the coordination of the fight against terrorism (UCLAT)

Central service for the fight against terrorism attached to the office of the Attorney General for Paris, Paris Tribunal de grande instance, Anti-terrorist investigating judges, special Assize Court composed of professional judges

Tracfin, administrative

DST, Central directorate for general intelligence

19

Georgia

S/2002/3 (02/01/2002) S/2002/3/add.1 (03/07/2002) S/2002/1185 (21/10/2002)

Special service for the protection of the security of the State, Centre for the fight against terrorism

 

 

General intelligence service

20

Greece

S/2002/43 (09/01/2002) S/2002/857 (06/11/2002) S/2003/772 (18/07/2003) S/2004/136 (20/02/2004)

 

 

CFCI, administrative

 

21

Hungary

S/2002/32 (08/01/2002) S/2002/1153 (15/10/2002) S/2003/787 (31/07/2003)

Anti-terrorist unit

 

ORFK, police

National security office

22

Ireland

S/2001/1252 (28/12/2001) S/2002/675 (17/06/2002) S/2003/816 (18/08/2003)

National office for criminal investigations

 Possibility of special criminal courts

MLIU, police

 

23

Iceland

S/2001/1308 (31/12/2001) S/2002/1020 (13/09/2002) S/2003/997 (15/10/2003)

National police commissariat

 

RLS, police

 

24

Italy

S/2002/8 (02/01/2002) S/2002/1390 (20/12/2001 S/1390/add.1 (01/04/2003) S/2003/724 (18/07/2003) S/2004/253 (29/03/2004)

Department of public security, Directorate-General for the criminal police

Attorney General for the principal town in the judicial district

UIC, administrative (Financial Security Committee)

Intelligence services

25

Latvia

S/2002/9 (02/01/2002) S/2002/1370 (16/12/2002) S/2003/1174 (15/12/2003)

Office for the defence of the Constitution

 

KD, administrative

 

26

Liechtenstein

S/2001/1253 (27/12/2001) S/2002/788 (19/03/2003) S/2003/273 (06/03/2003) S/2004/254 (29/03/2004)

 

 

EFFI, administrative (Group for the coordination of the fight against the financing of terrorism)

 

27

Lithuania

S/2002/23 (02/01/2002) S/2002/2019 (13/09/2002) S/2003/842 (27/08/2003)

 

Attorney General’s Office

MLPD, police

 

28

Luxembourg

S/2002/6 (02/01/2002) S/2002/1018 (13/09/2002) S/2003/1014 (16/10/2002)

Special terrorism group

Attorney General of Luxembourg, trial courts of the judicial district of Luxembourg

Anti-laundering service of the Attorney General attached to the court of the judicial district of Luxembourg, judicial

State Intelligence Service

29

Malta

S/2001/1250 (28/12/2001) S/2002/876 (01/08/2002) S/2003/1118 (24/11/2003)

 

 

FIAU, administrative

 

30

Moldova

S/2002/33 (08/01/2002) S/2002/1044 (19/09/2002) S/2002/978 (10/10/2003)

State Security Services

Attorney General’s Office

 

Intelligence service

31

Norway

S/2001/1138 (30/11/2002) S/2002/791 (19/07/2002) S/2003/265 (06/03/2003)

Civil Security Service

Attorney General

OKOKRIM, police

 

32

The Netherlands

S/2001/1264 (27/12/2001) S/2002/1136 (07/10/2002) S/2003/897 (17/09/2003)

National Police Office

Attorney General

MOT, administrative

National security service

33

Poland

S/2001/1275 (27/12/2001) S/2002/677 (17/06/2002) S/2003/271 (10/03/2003)

Central office of investigations

 

GIIF, administrative

National security service

34

Portugal

S/2002/120 (25/01/2002) S/2002/120 add.1 (20/03/2002) S/2002/1190 (24/10/2002)

Judicial police

 

UIF, police

General intelligence service

35

Czech Republic

S/2001/1302 (31/12/2001) S/2002/872 (01/08/2002) S/2003/261 (07/03/2003) S/2004/171 (02/03/2004)

Special division of the police

 

FAU, administrative

Intelligence and security services

36

Romania

S/2001/1339 (31/12/2001) S/2002/949 (28/08/2002)

 

Attorney General attached to the Supreme Court of Justice

ONPCSB, police

Intelligence service

37

United Kingdom

S/2001/1232 (24/12/2001) S/2002/787 (19/07/2002) S/2003/264 (06/03/2003) S/2004/157 (27/02/2004)

 

 

NCIS, police

Intelligence services

38

San Marino

1292 (08/01/2002) S/2002/786 (19/07/2002) S/2003/841 (27/08/2003)

Coordinator of police forces

Specialist investigating judge

 

 

39

Serbia

S/2001/1328 (31/12/2001) S/2002/1025 (13/09/2002)

Special anti-terrorist service

 

APML, administrative

 

40

Slovakia

S/2001/1225 (21/12/2001) S/2002/730 (05/07/2002) S/2004/65 (23/01/2004)

Group dealing with crises linked with terrorism

 

SJFP, police

 

41

Slovenia

S/2001/1277 (27/12/2001) S/2001/1277/ corr.1 (04/02/2001) S/2002/863 (01/08/2002) S/2003/1086 (13/11/2003)

 

Attorney General

OMLP, administrative

National security and intelligence office

42

Sweden

S/2001/1233 (24/12/2001) S/2002/691 (20/06/2002)

Security service

 

NFIS, police

 

43

Switzerland

S/2001/1224 (20/12/2001) S/2002/868 (01/08/2002) S/2003/967 (06/10/2003)

Task force terror USA , Interdepartmental terrorism group

Attorney General of the Confederation

MROS, police

 

44

Turkey

S/2001/1304 (31/12/2001) S/2002/948 (23/08/2002) S/2003/856 (03/09/2003)

Directorate General for security

Special courts

MSK, administrative

National intelligence service

45

Ukraine

S/2001/1330 (31/12/2001) S/2002/1030 (13/09/2002) S/2002/1084 (13/11/2003)

Security service (anti-terrorist centre)

 

SDFM, administrative

Intelligence services

66. Within the judicial organisation of certain States, a singular role is that of the investigating judge. The investigating judge, who has a hybrid status, being both judge and investigator, is part of the judicial landscape where criminal proceedings of the accusatorial type are found. At present, he is found, in particular, in France, Spain, Luxembourg, Belgium, the Netherlands and San Marino. The investigating judge does not try the perpetrators of offences but investigates the criminal cases coming before him and plays an active part in obtaining the evidence, while at the same time having significant coercive powers. Advocates of the model of the investigating judge consider that an investigating judge is better able to investigate the inculpatory and exculpatory evidence than the police or the Attorney General’s department.

67. Others note the difficulty of combining the role of investigator with that of impartial judge and propose the example of the investigating judge: this is a judge unconnected with the investigation who merely decides on coercive measures or settles disputes between parties. 56 It is a concept which implies a gradual move towards a more accusatorial type of criminal procedure.

68. As regards the fight against terrorism, anti-terrorist investigating judges do exist, apparently more as a consequence of the type of criminal procedure generally applied in the countries in question than of a deliberate choice of criminal policy. In any event, whether the criminal procedure is accusatorial or inquisitorial, respect for rights and fundamental freedoms is equally essential.

69. At this stage, in the absence of a more thorough study of the advantages and disadvantages of a particular type of criminal procedure, it seems difficult to say whether the presence or absence of the investigating judge is likely to increase or reduce the efficiency of the response to terrorism.

70. It does not appear desirable to recommend the continuation, the creation or the abolition of the investigating judge.

71. Following the attacks in Madrid, the Council of Europe on 25 April 2004 expressed its intention to step up the fight against all forms of terrorism. On that occasion, the Council of Europe emphasised the importance of efficient cooperation in intelligence matters and a better evaluation of the threat and invited the member States to promote efficient and systematic cooperation between the police and intelligence services.

72. Thus a new actor joined the list of partners of the judicial authorities in the fight against terrorism: the intelligence services. It is easy to understand the importance of intelligence when it comes to assessing the subjective element which the terrorist motive represents in the offence. Although relations between the judicial authorities and the intelligence services are by no means unheard of at national level, when placed in a supranational, or indeed regional, context those relations seem like a revolution in transparency.

73. Considering the possibilities for a possible structure for collaboration, Mr Coosemans suggests, as a course for reflection, the integration of the intelligence services within Europol or in the joint investigation teams, while recognising that such a choice will give rise to legal problems owing to the fundamental distinction between “law enforcement” and “intelligence”. 57

74. A good explanation of the possible confusion is provided by Mr Brodeur, of the Montreal School of Criminology, who states that “the convergence of security intelligence and criminal intelligence … is problematic and that the interlinking of networks will not be achieved without difficulty, if it is ever achieved at all. … The purpose of criminal intelligence is to arrest criminals and bring them before a court for trial. Owing to the public nature of the proceedings and to the cross-examination of witnesses, there is always a risk of confidential information being disclosed. It is for that reason that the security intelligence services are extremely reluctant to share their information with the police. The purpose of security intelligence is to prevent violence before it can be carried out, by various means. Recourse to the courts is one among a number of options and, in truth, a last resort”. 58

75. Although the intelligence services are the ramparts and the defenders of democracy in States governed by the rule of law, it must not be forgotten that dictatorships have relied on the “secret services” as an instrument of repression. A Report of the WEU Assembly thus states that the intelligence services are an instrument in the hands of public institutions and can be used for better or worse: they may provide a means of detecting and averting potentially dangerous situations, but they can also be misused as a means of secretly bringing pressure to bear. 59

76. The WEU Assembly has stated that the gathering of intelligence will invariably run up against ethical issues and that there are therefore ethical limits to the kind of means that can be used to gather intelligence. There is the issue of democracy, requiring parliamentary control and perfect knowledge on the part of the services concerned of the relevant law and statute. 60 Admiral Lacoste, former Director of the French DGSE, has said that “at a time when democratic principles and human rights are increasing recognised as universal values, citizens of all countries tend to require that their governments display transparency in conducting public affairs. Many are reluctant to accept that politicians and administrations can invoke ‘Secret of State’ to conceal certain information from their fellow citizens. Beyond the sensational aspects or arguments relating to individual cases, it is certainly a crucial subject, since it is eminently political, in the noble sense of the word. It is a debate involving society to which no one should be indifferent.” 61

77. Will that ethical limit to the gathering of intelligence be consistent with the principle of fairness of evidence which is an element of a fair trial? The question must be asked, since the PC-TI has emphasised that the use of special investigation techniques for other purposes, such as the protection of national security, may also be problematic with regard to respect for human rights and, more particularly, the requirements of Article 8 of the ECHR. 62

78. Democratic control is therefore imperative: a series of checks and balances to ensure compliance with the laws governing the activities of the intelligence and security services. Hence, while it is the task of the executive power to supervise their management and that of the judicial power to sanction any cases of non-compliance with the law, it is up to the legislative power to provide the legislative framework for the activities of those services and to scrutinise their compliance with the law. 63

79. It is not only democratic control that is essential, but also respect for the fundamental principles of the European Convention on Human Rights. Thus, in the context of the statements of personal data necessary in a criminal investigation 64 or a security investigation, 65 it is necessary to reconcile the principles of Article 8 ECHR and the fight against terrorism. It will be necessary to ensure that the legal framework for the activities of the intelligence services is such that cooperation between the judicial services, the police and the intelligence services fully respects the provisions of Article 6 ECHR on a fair trial without impeding the lawful action of the security services.

80. From the aspect of increased collaboration between the intelligence services and the authorities responsible for prosecuting terrorist offences, it is desirable that the particular characteristics of the services and also the purpose of their action be consistent with the principles that govern a fair trial

Some evidential difficulties

81. Faced with the increase in crime, and particularly in international terrorism, the judicial authorities and the police must protect society against criminal acts and offences. In order to do so, they employ increasingly sophisticated surveillance techniques or special investigation methods not only when a crime has been committed but also before it is committed, with the aim of preventing more serious offences. The Committee of Experts on special investigation techniques in relation to acts of terrorism has studied the many more or less intrusive modern techniques which may be used. 66

82. In the context of an efficient repressive approach to terrorism, the judicial authorities encounter the problem of gathering evidence. It is undoubtedly less easy to determine the subjective element – i.e. the terrorist motive – than it is to determine or discover physical evidence where an illegal act has been committed. There is now a tendency to gather evidence before the act occurs. Proof of the terrorist motive may be apparent from the links which a person maintains, from written materials, from words, from membership of a network. A person will then be suspected of intending to commit an offence or of belonging to a group which is to commit an offence.

83. The Court has also interpreted the concept of plausible reasons in connection with Article 5 ECHR, when it held that “having a ‘reasonable suspicion’ presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as ‘reasonable’ will however depend upon all the circumstances”. 67

84. The question arises whether the police or judicial action is subject to the prior establishment of an offence or whether, on the other hand, that action may also have a proactive aspect which enables investigations to be carried out before the act has been committed or before an offence has been recorded by the police.

85. Two international conventions have been expressly devoted to the concept of proactive policing or investigations: first, the Schengen Agreement, which allows the transfer between the various countries concerned of information relating to the prevention of future offences (Article 46) and, second, the Europol Convention, which authorises the centralisation of data relating to future offences or those being planned (Article 8).

86. Reactive investigations mean investigations into one or more defined acts whereas proactive investigations presuppose a prospective approach to a less precise phenomenon. A proactive approach resembles that of the intelligence services, who gather information on potential threats which have not otherwise been expressed. 68 

87. Proactive action must retain a judicial purpose. Consequently, a “fishing expedition” or action which merely has a policing purpose is not permitted; there must be a reasonable suspicion that punishable offences have been committed but are not yet known, or that such offences are going to be committed. A proactive investigation is justified in the case of the most serious crimes or offences, and therefore terrorism. It is to the credit of Professor Jean Pradel that he proposed that statutory provisions governing proactive investigations be drafted; 69 he defined such investigations as “all the investigations which most frequently use special techniques to prevent the probable commission of offences or to detect offences which have already been committed but remain unknown”. 70 Proactive investigations must satisfy the criteria of legality, subsidiarity and proportionality, 71 which were examined by the Committee of Experts on special investigation techniques. The development of special investigation and proactive investigation techniques seems likely to reinforce a response on the part of States which respects the pre-eminence of the law.

88. With a view to more vigorous criminal action, it is possible to envisage recommending the development and implementation of all the investigation techniques capable of preventing and suppressing terrorism, provided that that does not entail ceasing to respect the principles of the European Convention on Human Rights.

89. It also appears that the gathering of evidence in the context of mutual judicial assistance leaves something to be desired.

90. One expert of the Council of Europe considered that “the mechanisms of mutual police and judicial assistance in criminal matters for the establishment of a common legal framework have not proved as efficient and expeditious as hoped and have not made it possible to take energetic measures against the most dangerous international criminal organisations”, for instance because the States from which assistance is requested have little interest in the investigations where unilateral assistance is sought and because the States cling on to sovereignty in the administration of criminal justice. 72

91. At the end of 2003, the European Commission presented a proposal seeking to create a European evidence warrant which will apply the principle of mutual recognition to the obtaining of certain types of evidence for use in criminal proceedings. That proposal forms part of the framework of the work being carried out within the European Union in order to establish a European area of freedom, security and justice. It is based on the principle of mutual recognition of judicial decisions, which according to the Tampere European Council in 1999 should become the cornerstone of judicial cooperation. The basic idea is that the European warrant will be a decision issued by a judicial authority in one member State and directly recognised and executed in another member State. Compared with the existing mutual judicial assistance procedures which it will replace, the European evidence warrant will have a number of advantages; in particular, it will make it possible to speed up the proceedings and will offer clear guarantees as regards its issue and execution.

92. The approach adopted in respect of this European warrant will also make it possible to overcome the significant differences between member States as regards their criminal procedures. While the warrant states the objective to be attained, the executing State is none the less free to determine the best means of obtaining the evidence in accordance with its domestic law. This will thus avoid the problem which arises in a system based on the mutual recognition of national decisions, where some member States are required to execute a search warrant, when they would normally employ a less intrusive mechanism. Thus, in order to obtain bank information it is necessary in some member States to use a search order and in other States a production order, which is less intrusive.

93. The proposal contains specific guarantees. In the issuing State, a European evidence warrant can be issued only by a judge, an investigating magistrate or a prosecutor. The issuing authority will have to be satisfied that he would be entitled to obtain the objects, documents or data in similar circumstances if they were available on the territory of his own member State. Thus, the European evidence warrant will not be capable of serving to avoid the national guarantees applicable to the search for evidence. In the executing State, protection of the right not to give self-incriminating evidence is guaranteed. In both the issuing State and the executing State there must be a right to an effective remedy where coercive measures have been applied in order to obtain the evidence.

94. The efficiency of the investigations will be able to be increased from such an aspect. This example may serve as the basis for new European judicial cooperation.

95. The emergence of new mechanisms alongside old conventions which have been amended by protocols raises the fundamental question of the existence of a clear and consistent code of rules on mutual international assistance. The multiplicity of instruments may render mutual assistance difficult and unwieldy when it should be simple, rapid and efficient. The coordination of the texts developed within the Council of Europe incorporating the new mechanisms of the European Union and the preparation of a vademecum relating to their use would be instruments capable of increasing the efficiency of the States’ response in the face of particularly serious phenomena.

96. Such an initiative could be entrusted to the competent committees of the Council of Europe.

Judges’ training

97. Faced with the role which he is required to assume, the judge is under a duty to acquire, maintain and develop the knowledge which will enable him to remain in touch with the society in which he moves and in which he must play the role of social regulator. The judge’s training must be designed in such a way that he receives training linked with the taking-up of his post: then, specialised training must be provided in such a way as to enable him to keep abreast of both developments in national legislation and national legislative developments and also with international developments. This specialised training may also be dedicated to the fundamental questions of modern society. A judge’s training is beyond doubt an education, but it is also more than that: “it tends also to confer a range of operational information (knowing how to act) and to present models of conduct (knowing how to be)”. 73

98. The recent creation by the European Union of the European network for judicial training takes further the earlier action undertaken by the Council of Europe in the context of the Lisbon network. The objectives of the network are to cooperate, inter alia, in analysing and identifying the needs of training, in conceiving common training programmes and tools with a view to creating a European judicial area.

99. In the search for efficiency in the States’ response in the face of terrorism, the training of judges assumes distinct importance. Apart from meetings of a strictly operational nature or international exchanges of professional experience, there is scope for greater awareness of the legal instruments used to fight terrorism. The Council of Europe has developed numerous instruments on international judicial cooperation which have laid the foundations of day-to-day cooperation between the judges and have played a part in the creation of a pan-European area of justice.

100. The report presented by the Minister of Justice of Bulgaria at the 25th Conference of Ministers of Justice 74 also correctly states that judges’ training must, to an extent, be multidisciplinary: although it must cover anti-terrorist criminal law and mutual judicial assistance, it must also include banking law and tax law. This latter aspect must not be overlooked from the aspect of the fight against the financing of terrorism.

101. Essential in relation to the suppression of transnational offences, and therefore also in the fight against terrorism, the operation of international mutual judicial assistance is frequently criticised. The evaluation exercise carried out by the Council of the European Union 75 emphasised that, while mutual assistance is not without its faults, the habitual criticisms that it is slow, inefficient and powerless are excessive: in general, mutual assistance does not function as badly as it is made out to.

102. That European exercise emphasised that mutual assistance may however be improved in relation to training and the training of specialists in assistance. It highlighted a distinct need for initial and continuous training directly linked with the fact that the theme of mutual judicial assistance evolves over time.

103. Faced with dealing with transnational files, a number of conventions and international regulatory instruments, and also a wide variety of national instruments, may be applied when it is necessary to execute or draw up a request for mutual judicial assistance. The implementation of the Council of Europe’s Convention on the suppression of terrorism of 1977 is an instrument which supplements the general conventions on mutual assistance and extradition and the protocols to those conventions. The new forms of cooperation being set up within the European Union (the arrest warrant, the joint investigation teams) will have to combine with the existing conventions of the Council of Europe. A thorough knowledge of the relations between all the instruments will entail specialised training. Equally, if the instruments are not known they will be little used, which will prevent the negotiation of more effective international instruments and the adoption of new laws by the member States.

104. It is necessary to speed up, extend and bring up to date the initial and continuous training of judges so that the judicial authorities will have the competences most appropriate to the implementation of mutual assistance and extradition. The development of specialised training in relation to the most serious crimes should be encouraged.

Victims’ rights

105. In the face of terrorism, justice must be exemplary, since “in the case of terrorism, the assassin is also judged in relation to his victim”. 76 The exemplary nature of justice must not be understood from the aspect of repression on behalf of the victim but rather from the aspect of access to justice. This access must be guaranteed to the victim as the person seeking compensation for the harm sustained but the victim also plays an important part in the criminal action. That undoubtedly applies all the more in cases of terrorism.

106. As regards the question of compensating the victim, the European Convention on the compensation of victims of violent crimes, concluded within the Council of Europe, is the first relevant instrument, although the rate of ratification is low. 77 The right to compensation for harm has also been recognised in recent instruments of the European Union. Thus, in the course of publishing a green paper on compensation to crime victims, 78 the European Commission submitted a proposal for a directive on compensating the victims of crime, aware of the need, following the attacks of 11 September 2001, to provide full cover for the compensation of victims of terrorism. 79

107. These instruments show that the need for compensation is genuinely taken into account. However, the victim must have a right to support and especially a right to recognition of his status. 80 This recognition appears to justify conferring on the victim a true role as an actor and thus allowing him a real place in the criminal proceedings.

108. In Recommendation R (85) 11, the Committee of Ministers had placed the emphasis on a series of guidelines which made it possible to go beyond the objectives of criminal justice, expressed in terms of the relationship between the State and the offender, in order to develop a fundamental function for criminal justice, namely to meet the needs of the victim and to safeguard his interests. 81

109. The European Union adopted a Framework Decision on 15 March 2001 on the status of victims in criminal proceedings 82 aimed at harmonising the laws and regulations with a view to offering victims a higher level of protection and including certain measures of assistance. The framework decision recognises the need to approximate the rules on the standing and main rights of victims, with particular regard to the right to be treated with respect for their dignity, the right to provide and receive information, the right to understand and be understood and the right to be protected at the various stages of procedure. 83

110. However, the framework decision states in its recitals that it does not impose on obligation on member States to ensure that victims will be treated in a manner equivalent to that of a party of proceedings. 84 That recital must be weighed up against a judgment of the European Court of Human Rights of 1 July 1997, in which the Court held that Article 6 § 1 of the European Convention applied to a claim for compensation from the State by the victim of a crime, 85 since the matter concerned a dispute over a civil right. That entails, therefore, the right to a fair hearing and all the consequences thereof.

111. It can be recommended that the member States’ legal response take proper account of the status of the victim by adopting measures enabling them to make use of them, while fully respecting the European Convention on Human Rights.

Conclusion

112. The attacks of 11 September 2001 and those of 11 March 2003 revealed the globalisation of terrorism and therefore the need for a common repressive policy and also the need to develop mechanisms for cooperation equal to the challenge to be overcome. However, that fight can be waged only in strict compliance with the standards underlying States governed by the rule of law.

113. Although terrorism affects the international community, it is for each State individually to suppress that phenomenon by means of its criminal law and for all States together to move towards the harmonisation and convergence of the national rules derived from the international instruments aimed at making terrorism an offence on a global scale and at ensuring greater mutual judicial assistance.

114. The present document, which admittedly is capable of being perfected, together with the suggestions it puts forward, constitutes an attempt, “in the face of the globalisation of terrorism, to harmonise the judicial response” 86 as regards both the perpetrators of terrorist acts and their victims, on the basis of the acquis of the Council of Europe.

Summary of the suggestions of the Report

· Notwithstanding the difficulties involved in defining terrorism for the purpose of making it a criminal offence, it is extremely desirable that terrorism be made a pan-European criminal offence. The definition of such a criminal offence would have the advantage of extending the work carried out by the European Union and would show the common commitment to waging an effective fight against terrorism. It would have the further advantage that in the sensitive area of terrorism it would be possible to abandon the principle that the offence in respect of which extradition is sought must be an offence in both of the countries concerned; and the measure defining the offence would constitute a harmonised provision whose conformity with Article 7 ECHR would be amenable to review by the Court.

As regards choices of an efficient legal response in the face of terrorism

· It is recommended that the member States bear in mind the need to reconcile the efficiency of the fight against terrorism with respect for rights and fundamental freedoms by ensuring that their choices in terms of judicial organisation are consistent with the Council of Europe Guidelines on human rights.

As regards state structures responsible for the fight against terrorism

· The development of the work of Codexter (profiling) with a view to the rapid establishment of a data base which would allow an overall analytic view of those conducting and involved in criminal proceedings against terrorists should be encouraged.

· In the interest of the efficiency of criminal investigations in a transnational dimension, it appears advisable to recommend at least the setting-up of specialised central judicial entities.

· It does not appear desirable to recommend the continuation, the creation or the abolition of the investigating judge.

· From the aspect of increased collaboration between the intelligence services and the authorities responsible for prosecuting terrorist offences, it is desirable that the particular characteristics of the services and also the purpose of their action be consistent with the principles that govern a fair trial

As regards evidential difficulties

· With a view to more vigorous criminal action, it is possible to envisage recommending the development and implementation of all the investigation techniques capable of preventing and suppressing terrorism, provided that that does not entail ceasing to respect the principles of the European Convention on Human Rights.

· Such an initiative could be entrusted to the competent committees of the Council of Europe.

As regards judges’ training

· It is necessary to speed up, extend and bring up to date the initial and continuous training of judges so that the judicial authorities will have the competences most appropriate to the implementation of mutual assistance and extradition. The development of specialised training in relation to the most serious crimes should be encouraged.

As regards victims’ rights

· It can be recommended that the member States’ legal response take proper account of the status of the victim by adopting measures enabling them to make use of them, while fully respecting the European Convention on Human Rights.

1 See Report of Bulgaria MJU-25(2003)1, Report of the Secretary General of the Council of Europe MJU-25(2003)2, Report of Germany MJU-25(2003)5, Report of Bosnia-Herzegovina MJU-25(2003)6, Report of Liechtenstein MJU-25(2003)7, Report of Serbia and of Montenegro MJU-25(2003)10, Report of Slovenia MJU-25(2003)9, Report of Cyprus MJU-25(2003)11, Report of Sweden MJU-25(2003)8, Report of The Former Yugoslav Republic of Macedonia MJU-25(2003)15, Report of Poland MJU-25(2003)14, Report of Norway MJU-25(2003)4, Report of Turkey MJU-25(2003)3, Report of Hungary MJU-25(2003)17, Report of Spain MJU-25(2003)18, Report of Canada MJU-25(2003)12, Report of UNMIK MJU-25(2003)16, Report of the International Commission on Civil Status MJU-25(2003)13.
2 See Codexter (2004) misc 02 of 30 March 2004.
3 See Cassese, A., Violence et droit dans un monde divisé, P.U.F., Coll. Perspectives internationales, 1990, p. 115.
4 The words are those of Marcelo Kohen, Professor of International Law at Geneva, in an article entitled “L’arme de la civilisation, c’est le droit” (“The weapon of civilisation is the law”, Le Temps, 17 September 2001.
5 Euro Court HR, the Brogan and others v. United Kingdom judgment, Series A no. 145-B; the Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182.
6 Euro Court HR, the Cemil Kiliç v. Turkey judgment, Reports of Judgments and Decisions 2000-III, p. 62; on an interference aimed at protecting the rights and freedoms of others, see ECHR, the Chassagnou and Others v. France judgment of 29 April 1999, Reports 1999-III, § 113.
7 Euro Court HR, the Klass and Others v. Germany judgment, Series A no. 28.
8 Euro Court HR, the Margaret Murray and Others v. United Kingdom judgment of 28 October 1994, Series A no. 300-A.
9 Euro Court HR, the Zana v. Turkey judgment of 25 November 1997, Reports 1997-VII.
10 Adopted by the Committee of Ministers on 11 July 2002 at the 804th Meeting of Ministers’ Deputies.
11 For the resolutions of the Parliamentary Assembly of the Council of Europe, see The fight against terrorism: Council of Europe standards, publications of the Council of Europe, 2004, p. 325 et seq.
12 See Recommendation 1644 (2004) of 29 January 2004; Codexter (2004) 06.
13 See Albert Camus, Chroniques algériennes, Actuelles III, 1958.
14 See the summary of the definitions of the various international or regional instruments, below.
15 See de Salvia, M., Compendium de la CEDH, article 7, p. 387.
16 See de Schutter, O., La Convention européenne des droits de l’homme à l’épreuve de la lutte contre le terrorisme, in Lutte contre le terrorisme et droits fondamentaux, Bruylant, 2002, p. 141.
17 European Convention on Human Rights, the Kokkinakis v. Greece judgment of 25 May 1993, § 52.
18 See Codexter (2004) 05 restricted of 16 February 2004, see also Codexter (2003) 13 of 23 October 2003 for a comparative examination of the scope of the United Nations conventions on the fight against terrorism.
19 See the Report by the Secretary General in Sofia, MJU – 25 (2003) 2, §§. 25, 33, 62.
20 CM/Del/Dec (2001) 765 bis, point 21, Strasbourg 21 septembre 2001
21 See Codexter (2004) 17 prov of 2 April 204, para. 15.
22 Official Journal 2002 L 164, 22.06.2002.
23 These measures are additional to those already provided for in Framework Decision 2001/220/JHA.
24 See OJ 2002 L 190, 12 July 2002, p. 1.
25 Notwithstanding the Charter of Fundamental Rights proclaimed at the European Council in Nice in December 2000, the arrest warrant falls within the scope of Article 5 ECHR.
26 Tribunal Correctionnel, Mons (Chambre du Conseil), decision of 24 April 2004 Procureur fédéral v. M. L., this decision is under an appeal; Tribunal Correctionnel, Mons (Chambre du Conseil), decision of 28 April 2004 Procureur fédéral v. M. U.; and Cour d’appel, Mons, judgment of 13 May 2004.
27 See Com (2004) 221 final of 29 March 2004, reproduced in a document of the Council of the European Union of 5 April 2004, 8200/04, JHA 109.
28 L’impossible guerre contre le terrorisme. Entretien avec Pierre Hassner, “ Esprit” August-September 2002, p. 72 et seq.
29 European Convention on the suppression of terrorism (STE no. 90), 27 February 1997.
30 Explanatory Report on the European Convention on the suppression of terrorism, § 5.
31 Explanatory Report, § 12.
32 Protocol (ETS no. 90).
33 See §§ 17 and 18 of the Explanatory Report on the amended Convention in The Fight against terrorism – Council of Europe Standards, 2003, p. 20.
34 See for the initial draft recommendation, and more particularly § 11, Codexter (2004) 06, p. 8.
35 See de Salvia, M., Compendium de la CEDH, Article 7, p. 387.
36 See de Schutter, O., La Convention européenne des droits de l’homme à l’épreuve de la lutte contre le terrorisme, in Lutte contre le terrorisme et droits fondamentaux, Bruylant, 2002, p. 141.
37 Euro Court HR, the Kokkinakis v. Greece judgment of 25 May 1993, § 52.
38 This description is taken from G. Guillaume, Terrorisme et droit international, R.C.A.D.I., 1989-III, vol. 215, p.304.
39 See response of France, PC-TI (2003) 8, p. 73.
40 See FATF-XII, Report on Money Laundering Typologies 2000-2001, p. 21.
41 Euro Court HR, the Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182.
42 See Euro Court HR, the Klass judgment, § 48.
43 See Euro Court HR, the Raimondo v. Italy judgment of 22 February 1994, Series A no. 281-A, §§ 27 and 30.
44 See Euro Court HR, the Indelicato v. Italy judgment of 18 October 2001 (ref. HUDOC 2885), which states that Article 3 ECHR enshrines one of the fundamental values of democratic societies even in the most difficult circumstances such as the fight against terrorism and organised crime.
45 See PC-TI (2003), 11 October 2003.
46 See Euro Court HR, the Margaret Murray and Others v. United Kingdom judgment of 28 October 1994, Series A no. 300-A.
47 See the explanatory memorandum by the Rapporteur of the Political Affairs Committee of the Parliamentary Assembly of the Council of Europe, point II, Codexter (2004) 6 of 25 February 2004.
48 See Report on Money Laundering Typologies 2001-2002, GAFI-XIII, p.2.

49 See Report on Money Laundering Typologies 2002-2003, GAFI-XIV, p. 7: Terrorist groups may derive income from criminal acts, as does organised crime. One terrorist group cited as an example in the exercise on typologies for that year and the preceding years derives the bulk of its capital from kidnapping (demanding ransoms) and extortion (of so-called “revolutionary tax” or protection money). Another group, also mentioned in previous exercises, uses funds obtained through narcotics trafficking for the bulk of its income. In obtaining funds from illegal activities, the actions of the terrorist group do not differ from those of a non-terrorist criminal organisation.

50 Convention EST 141 of the Council of Europe of 8 November 1990.
51 See for the most recent state of advancement of the works the report of the third meeting of the PC-RM, PC-RM (2004) 12 of 3 May 2004.
52 Official Journal 2002 L 349 of 24.12.2002, p. 1; on 23-24 January 2004 the Article 36 Committee approved the subject of the first evaluation of the exchange of information relating to terrorist activities between the prosecution authorities, the information services and any other service dealing with aspects of terrorism including national and European coordination.
53 The reports on Belgium and France will be examined on 8 June 2004. It should be noted that on 25 March 2004 the European Council requested an interim report in September 2004 and a final report covering the new accession States in September 2005.
54 See Framework Decision of 13 June 2002, published in OJ 2002 L 162, 20 June 2002, p. 1.
55 See OJ 2003 L 16, 22 January 2003.
56 See as regards this argument set out in the context of the study of the corpus juris which drew up a number of guiding principles in relation to the criminal protection of the financial interests of the European Union, the work by M. Delmas Marty and J. Vervaele, La mise en œuvre du corpus juris dans les Etats membres, Intersentia, 2000, vol. I. In putting forward the idea of a European prosecutor’s office, the authors of the corpus juris are no longer speaking of an investigating judge but of a European investigating division.
57 See T. Coosemans, “Promouvoir l’Europe du renseignement: nécessité et perspectives”, Revue du Marché commun et de l’Union européenne, April 2004, p. 241.

58 See J.-P. Brodeur, “Les services de renseignement et les attentats de septembre 2001”, International Center for Comparative Criminlogy, University of Montreal (available (in French) at www.unites.uqam.co); see also G. Treverton, “Reshaping intelligence to share with ‘ourselves’”, Commentary no. 82, publication of the Canadian Security Intelligence Service, 16 July 2003 (available at www.csis-scrs.gc.ca).
59 See WEU Assembly, “Parliamentary oversight of the intelligence services in the WEU countries – current situation and prospects for reform”, report submitted on behalf of the Committee for Parliamentary and Public Relations by Ms Kestelijn-Sierens, Document A/1801 of 4 December 2002, 48th session.
60 See WEU Assembly, “The new challenges facing European intelligence – reply to the annual report of the Council”, report submitted on behalf of the Defence Committee by Mr Lemoine, document A/1775, 4 June 2002.
61 Report of the symposium “Secret d’Etat ou transparence?”, 20 January 1999 – Standing Committee for the supervision of the intelligence services, Activities Report 1999, Belgium.
62 See PC-TI report, op. cit., § 51; see Euro Court HR, the Rotaru judgment of 4 May 2000, Reports 2000-V, 59: a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending it.
63 WEU Assembly, “Parliamentary oversight of the intelligence services in the WEU countries – current situation and prospects for reform”, op. cit.
64 See Euro Court HR, the Margaret Murray judgment, cited above.
65 See Euro Court HR, the Leander v. Sweden judgment of 26 March 1997, Series A no. 116. 66 See report of the Committee of Experts on special investigation techniques in relation to terrorism, PC-TI (2003) 11, 6 October 2003. 67 See Euro Court HR, the Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182; the Court considered that terrorist crime came within a special category which obliged the police to act expeditiously to make use of the information in order to reduce the risk of suffering and loss of human life.
68 It is symptomatic that Western intelligence services increasing focus their activities on organised crime and, of course, on terrorism.
69 See Jean Pradel, De l’enquête pénale proactive: suggestions pour un statut légal, Dalloz, 1998, p. 57 et seq.
70 See PC-TI report, op.cit., § 47.
71 See PC-TI report, op. cit., § 48.
72 See PC-OC (2004) 2 of 16 February 2004, opinion by Mr Stefano Dambruso, a prosecutor in Milan.
73 See G. Oberto, “Recrutement et formation des magistrats en Europe”, published by Council of Europe Publications in March 2003.
74 See Council of Europe, MJU-25 (2003) 1, p. 11.
75 Final Report on the first evaluation exercise – mutual legal assistance in legal matters, Official Journal 2001 L 216, 1 August 2001, pp. 14-26.
76 Taken from M. Walzer in Guerres justes et injustes, Paris, Belin, 1999, p. 278.
77 See Convention ETS 116 of 24 November 1983, see also Excerpt from the Summary Report of the 48th meeting of the Committee of Experts on the Operation of European Conventions in the Penal Field (PC-OC), Codexter (2004) 08 of 16 March 2004.
78 See Com (2001) 536 final.
79 See proposal for a directive, published in OJ 2003 C 405, 25 February 2003, pp. 69 to 89.
80 See article by R. Cario, “Terrorisme et droit des victims”, in Terrorisme, victimes et responsabilité pénale internationale, Calman-Lévy, 2003, pp. 342 et seq.
81 Recommendation adopted on 28 June 1985 at the 387th meeting of the Ministers’ Deputies.
82 See OJ 2001 L 82, 22 March 2001, pp. 1 to 4.
83 Recital 8 to the Framework Decision of 15 March 2001.
84 Recital 9.
85 See Euro Court HR, the Gustafson v. Sweden judgment of 1 July 1997, Reports 1997-IV; see also the Pérez v. France judgement of 12 February 2004
86 The words are borrowed from the President of the association SOS Attentats in his introduction to the work entitled “Terrorisme, victimes et responsabilité pénale internationale”, Calman-Lévy, 2003.



 Top