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    CM(2004)134 9 July 2004
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    893 Meeting, 13 July 2004
    10 Legal questions


    10.1 Committee of Experts on Terrorism (CODEXTER) –

    Abridged report of the 3rd meeting (6-8 July 2004)

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    List of items discussed and decisions taken

    1. The Committee of Experts on Terrorism (CODEXTER) held its 3rd meeting in Strasbourg, from
    6 to 8 July 2004 under the Chairmanship of Mrs Gertraude KABELKA (Austria). The Committee adopted the agenda as it appears in Appendix I to the present report.

    2. The Director of Legal Co-operation of the Council of Europe, Mr Roberto LAMPONI, addressed the Committee and reported about recent developments of interest to the CODEXTER.

    3. The Committee was informed about the revised terms of reference which instruct it to elaborate proposals for one or more instruments (which could be legally binding or not) with specific scope dealing with existing lacunae in international law or action on the fight against terrorism, such as those identified by the CODEXTER in its 2nd meeting report (document CM(2004)61). It was also informed about the other relevant decisions of the Committee of Ministers concerning the fight against terrorism (see paragraph 13 below).

    4. In accordance with its revised specific terms of reference, the CODEXTER considered the implementation of Council of Europe priority counter-terrorism activities.

    5. With regard to “apologie du terrorisme” and “incitement of terrorism”, the Working Group CODEXTER-APOLOGIE considered the relevant case-law of the European Court of Human Rights, and pursued its consideration of the issues at stake in the light of its findings at its last meeting. The CODEXTER took note with interest of the results of the meeting of the Working Party, as they appear in Appendix II to the present report, and agreed to revert to them in its future discussion concerning the elaboration of one or more instruments dealing with existing lacunae in international law or action on the fight against terrorism (see paragraph 13 below). Moreover, the CODEXTER was informed about the publication of the analytical report on the concepts of “apologie du terrorisme” and “incitement of terrorism”.

    6. With regard to the elaboration of country profiles on the legislative and institutional capacity of states in their fight against terrorism, the Working Group CODEXTER-PROFILER examined the national reports submitted by Germany and Romania and took note of the oral information presented by Turkey in the context of the Pilot Project agreed at the last meeting. On the basis of the proposal of the Working Group, the CODEXTER agreed to pursue the elaboration of country profiles and authorised the publication of the profiles of Germany and Romania. It also agreed with the proposal submitted by the Secretariat with regard to the development of co-operation and synergies with the OSCE-ODIHR in this direction. Finally, the CODEXTER thanked the delegations of Azerbaijan, Belgium, Bulgaria, Latvia, Poland, Spain and the United Kingdom which volunteered to submit their respective profiles at the next meeting. Moreover, the European Union expressed its willingness to take part in this exercise.

    7. With regard to the protection of witnesses and collaborators of justice in relation to acts of terrorism and to special investigation techniques in relation to acts of terrorism, the CODEXTER was informed about the adoption by the Committee of Ministers of specific terms of reference for a Committee of Experts on the Protection of Witnesses and Collaborators of Justice (PC-PW), and a Committee of Experts on Special Investigation Techniques (PC-TI). The CODEXTER would be represented in these committees respectively by Mr Roberto BELLELLI (Italy) and Ms Julie DUTRY (Belgium).

    8. With regard to action to cut terrorists off from funding sources, the CODEXTER was informed about the activities of the Select Committee of Experts on the Evaluation of Anti-Money Laundering Measures (MONEYVAL) and of the Committee of Experts on the Revision of the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (PC-RM), whose specific terms of reference now include the possible introduction of provisions concerning the prevention of money laundering and the financing of terrorism. The CODEXTER will be represented in the PC-RM by Ms Marja LEHTO (Finland).

    9. With regard to international co-operation on law enforcement relating to the fight against terrorism, the CODEXTER recalled the work of the Committee of Experts on the Operation of European Conventions in the Penal Field (PC-OC) regarding the functioning of international anti-terrorist co-operation mechanisms with a view to their reinforcement.

    10. With regard to the questions of identity documents which arise in connection with terrorism, the CODEXTER was informed about the adoption of a final activity report by the Group of Specialists on Identity and Terrorism (CJ-S-IT), including proposals for provisions to be included in a possible future Council of Europe instrument.

    11. The CODEXTER was informed about the work of the European Commission for the Efficiency of Justice (CEPEJ), and in particular of the assessment report on the effectiveness of national judicial systems in their responses to terrorism, of which the CEPEJ took note at its last meeting in June 2004. The CODEXTER agreed to bear in mind the findings of this report in its future work (see paragraph 13 below).

    12. With regard to the protection and compensation of victims, the CODEXTER was informed about the Belgian system of protection and compensation of victims and agreed to pursue the exchanges of information and best practice on compensation and insurance schemes introduced by states, particularly in relation to victims of terrorist acts.

    The CODEXTER was also informed about the work of the Steering Committee on Human Rights (CDDH) in relation to the promotion of the Guidelines on Human Rights and the Fight against Terrorism and in particular about their revision. In this respect, the CODEXTER was informed that the Group of Specialist on Human Rights and the Fight Against Terrorism (DH-S-TER) will resume its work with a view to developing additional Guidelines on aid for victims of terrorism and protection of their fundamental rights. The CODEXTER agreed to appoint Mr Martin SØRBY (Norway) as representative of the CODEXTER in the DH-S-TER, subject to the adoption of the draft terms of reference for this Committee by the Committee of Ministers.

    Finally, it was informed about the approval by the Bureau of the European Committee on Crime Problems (CDPC) of draft specific terms of reference for a Committee of Experts on Assistance to Victims and Prevention of Repeat Victimisation. The CODEXTER expressed its wish to be represented in this Committee and agreed to appoint Mr Ignacio PEREÑA PINEDO (Spain) as its representative, subject to the adoption of the draft specific terms of reference for this Committee by the Committee of Ministers.

    13. With regard to the elaboration of a specific-scope instrument or instruments on the fight against terrorism in pursuance of the revised specific terms of reference given to the CODEXTER, the CODEXTER considered and took note of the possible elements of a preliminary draft instrument(s) on the prevention of terrorism submitted by the Bureau as reproduced in Appendix III and of the further proposals presented by the Bureau for the elaboration of preliminary draft instruments as reproduced in Appendix IV. Some delegations stressed that they should not be considered as exhaustive. The CODEXTER authorised the Bureau together with the Chair of the Working Party CODEXTER-Apologie to prepare a preliminary draft covering the issues listed in Section 1 of Appendix IV for consideration at the next meeting.

    14. The CODEXTER took note of the information provided on the measures taken at national level against terrorism. In this connection, it agreed to conduct exchanges of information about the state of signatures and ratifications of the European Convention for the Suppression of Terrorism (ETS No. 90) and its Amending Protocol (ETS No. 190), in the light of the decision taken by the Committee of Ministers. Moreover, it was informed about the work carried out in other international fora.

    15. The CODEXTER agreed to hold its next meeting in Strasbourg from 18 to 20 October 2004.

    Appendix I

    Agenda

    1. Opening of the meeting / Ouverture de la réunion

    2. Adoption of the draft agenda and approval of the report of the 2nd meeting / Adoption du projet d'ordre du jour et approbation du rapport de la 2e reunion

    3. Statement by the Director of Legal Co-operation of the Council of Europe, Mr Roberto LAMPONI / Allocution du Directeur de la Coopération Juridique du Conseil de l'Europe, M. Roberto LAMPONI

    4. Decisions of the Committee of Ministers concerning the CODEXTER / Décisions du Comité des Ministres concernant le CODEXTER

    5. 114th Session of the Committee of Ministers - follow-up by the CODEXTER / 114e Session du Comité des Ministres - Suivi du CODEXTER:
    Consideration of possible instruments dealing with existing lacunae in international law or action on the fight against terrorism / Examen d' d'un ou plusieurs éventuels instruments visant à combler les lacunes existant dans le droit international ou dans l'action en matière de lutte contre le terrorisme

    6. "Apologie du terrorisme" and "incitement to terrorism" – 2nd meeting of CODEXTER-APOLOGIE / « Apologie du terrorisme » et « incitement to terrorism » - 2e réunion du CODEXTER- APOLOGIE

    7. National reports on counter-terrorism capacity : consideration of the feasibility of setting up a European register of national and international standards – 2nd meeting of CODEXTER-PROFILER / Rapports nationaux sur la capacité de lutte contre le terrorisme : examen de la possibilité de mise en place d'un Registre européen de normes nationales et internationales – 2e réunion du CODEXTER-PROFILER

    8. Protection of Witnesses and Pentiti in relation to Acts of Terrorism/ Protection des témoins et des repentis en relation avec les actes de terrorisme (PC-PW)

    9. Special Investigation Techniques in relation to Acts of Terrorism / Techniques spéciales d'enquête en relation avec des actes de terrorisme (PC-TI)

    10. Action to cut terrorists off from funding sources / Actions visant à éliminer les sources de financement des terroristes

    11. International co-operation on law enforcement / Coopération internationale en matière de répression

    12. Questions of identity documents which arise in connection with terrorism / questions relatives aux documents d'identité qui surgissent dans le contexte du terrorisme

    13. Protection and compensation of victims of terrorism / Protection et dédommagement des victimes du terrorisme

    14. Information on work carried out in the Council of Europe / Information sur les travaux en cours au Conseil de l'Europe (CDPC, CDCJ, CEPEJ, CDDH)

    15. Information on measures taken at national level against terrorism / Information sur les mesures prises au niveau national contre le terrorisme

    16. Information concerning work carried out in other international fora / Information sur les travaux en cours dans d'autres instances internationales

    17. Organisation of the future work of the CODEXTER / Organisation des travaux futurs du CODEXTER

    18. Other business / Divers

    Appendix II

    Results of the meeting of the Working Party CODEXTER-APOLOGIE of 7 July 2004

    Preliminary draft provisions for a possible instrument on public provocation to commit acts of terrorism

    Provision to be added to the Preamble of the draft instrument

    Noting that the public provocation to commit acts of terrorism, as defined in Paragraph b.2, can lead to:
    - the recruitment of terrorists;
    - the strengthening of ethnical and religious tensions which can provide a basis to terrorism;
    - the dissemination of “hate speeches”; and
    - the promotion of ideologies favourable to terrorism.

    a) Definition

    “Acts of terrorism” shall be defined making reference to Article 1, paragraph 1 of Convention ETS 090, as modified by its Protocol of Amendment (ETS 190)

    b) Incrimination

    1. Each State [shall] adopt such legislative and other measures [including procedural measures], as may be necessary to establish as criminal offence, when committed intentionally, the public provocation to commit acts of terrorism, as defined in Paragraph a).

    2. For the purpose of paragraph 1 above "public provocation to commit acts of terrorism" is defined as a statement, accessible by a wide audience, inciting to the commission of acts of terrorism [or presenting the acts of terrorism as necessary and justified].

    c) Guarantees with respect to measures and sanctions

    Each State [shall] ensure that the establishment, implementation and application of the measures and sanctions aiming at the repression of public provocation to commit acts of terrorism is subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, particularly the freedom of expression, including rights arising pursuant to obligations it has undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality.

    In the evaluation of criminal liability of persons incriminated for the offences defined in paragraph b) “incrimination” and of the applicable sanctions, each State [shall] consider in particular:
    - the quality of the author and of the addressee of the message
    - the context in which the infraction is committed
    - the proportionality of the measures taken, or to be taken, with respect to the legitimate aims pursued and to their necessity in a democratic society.

    d) [Aiding]

    Each State [shall] adopt such legislative and other measures as may be necessary to prevent, when committed intentionally, aiding or abetting the commission of any of the offences established in accordance with paragraph b) “incrimination” with intent that such offence be committed.

    e) [[Criminal] Corporate liability]

    Reference to the general context of the draft instrument

    f) [International co-operation]

    Reference to the general context of the draft instrument and in particular to the creation of a network of contact points.

    Appendix III

    Possible elements of a preliminary draft instrument(s) on the prevention of terrorism, discussion paper prepared by the Bureau of the CODEXTER

    I - Principles
    - Objectives
    - Scope of application
    - Instruments of reference (European Conventions, universal sectorial conventions)
    - Protection of Human Rights

    II - Preventive measures
    - Measures to deny terrorist groups freedom of operation
    - Measures to prevent abuse of the right of asylum and refugee status
    - Measures relating to identity questions (cf. Final report of the Group of Specialists on Identity and Terrorism (CJ-S-IT), document CJ-S-IT (2004) 16)
    - Awareness raising measures
    - Measures for the training of personnel responsible for prevention, detection and control in the areas covered by the instrument
    - Protection of victims

    III - Penal Law Measures
    - Public provocation to commit acts of terrorism (cf. CODEXTER-APOLOGIE, Appendix III to the present report)
    - Recruitment of terrorists
    - Corporate liability
    - Sanctions and measures
    - Jurisdiction
    - Duty to investigate including special investigation techniques (cf. PC-TI)
    - Protection of witnesses (cf. PC-PW)

    IV - International Co-operation
    - General obligation to co-operate, including training and technical assistance
    - Exchange of information, including spontaneous information
    - Confidentiality of information and limitation on use
    - Networking, including national contact points

    V - Other
    - Inter-religious and cultural dialogue, education, voluntary sector and civil society
    - Ratification of existing instruments
    - Withdrawal of reservations (cf. CAHDI)
    - Enhancing implementation of existing instruments, including FATF Special Recommendations

    Appendix IV

    Proposals of the Bureau for the elaboration of preliminary draft instruments
    on the prevention of terrorism

    1) The Bureau proposes the following priority issues to be the core of an instrument:
    - Public provocation to commit acts of terrorism1
    - Recruitment of terrorists
    - Corporate liability
    - Sanctions and measures
    - Duty to investigate, including possibly a general provision on special investigation techniques2
    - Possibly a general provision on protection of witnesses3
    - Possibly a general provision on protection of victims4

    2) The Bureau proposes that the following issues inter alia may possibly be dealt with in further instruments:
    - Inter-religious and cultural dialogue, education, voluntary sector and civil society
    - Ratification of existing instruments
    - Withdrawal of reservations (support the work of the CAHDI)
    - Enhancing implementation of existing instruments, including FATF Special Recommendations (support the work of the MONEYVAL and PC-RM)
    - Measures relating to identity questions (cf. Final report of the Group of Specialists on Identity and Terrorism (CJ-S-IT), document CJ-S-IT (2004) 16).

Note 1 Cf. CODEXTER-APOLOGIE, Appendix II to the present report.
Note 2 In the light of developments concerning the PC-TI.
Note 3 In the light of developments concerning the PC-PW.
Note 4 In the light of developments concerning the new committee on victimization (Committee of experts on assistance to victims and prevention of repeat victimization).


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