CM(2005)172 16 November 20051
951 Meeting, 14 December 2005
10 Legal questions
10.5 Committee of Experts on Terrorism (CODEXTER)
Abridged report of the 9th meeting (Strasbourg, 8-10 November 2005)
List of items discussed and decisions taken
1. The Committee of Experts on Terrorism (CODEXTER) held its 9th meeting in Strasbourg, from 8 to 10 November 2005 under the Chairmanship of Ms Gertraude KABELKA (Austria). The list of participants appears in Appendix I to the meeting report (document CODEXTER (2005) 34 prov). The Committee adopted the agenda as it appears in Appendix 1 to the present report. Further to that, the Committee adopted the report of the previous meeting, held in Strasbourg from 28 February to 4 March 2005 (document CODEXTER (2005) 12 prov) and authorised its publication.
2. The Director General of Legal Affairs, Mr Guy de Vel, addressed the CODEXTER. Further to that, the CODEXTER was informed about the decisions of the Committee of Ministers concerning the CODEXTER and, in particular, about the adoption of the new Council of Europe Conventions relating to terrorism (CETS Nos. 196 and 198), Recommendations of the Committee of Ministers to member states (Rec(2005)7, Rec(2005)9 and Rec(2005)10), as well as the adoption of the Guidelines on the Protection of Victims of Terrorist Acts.
Moreover, as per the Committee of Ministers’ request (CM/Del/Dec (2005) 934/3.1 of 6 - 7 July 2005), the CODEXTER considered PACE Recommendation 1706 (2005) - Media and terrorism and Recommendation 1713 (2005) - Democratic oversight of the security sector in member states. The CODEXTER considered the comments already submitted by the Bureau of the CODEXTER and in this relation noted that the question of cyberterrorism should rather be integrated in the overall assessment of the implementation of the Cybercrime Convention, of which the CODEXTER wished to be kept informed. The CODEXTER concluded that large scale attacks on computer systems appear to be already covered by the Cybercrime Convention (ETS 185), without prejudice to any further proposals that might be presented on the subject. The CODEXTER further took note on proposals on practical measures aimed at countering and preventing the use of computer systems for terrorist purposes.
3. The CODEXTER considered the state of signatures and ratifications of Council of Europe conventions in the field of the fight against terrorism and encourages countries which had not yet signed or ratified the aforesaid legal instruments to launch the procedure as soon as possible.
4. The CODEXTER also considered and adopted the country profiles on counter-terrorism capacity of Austria, Lithuania, Luxembourg, Moldova, Romania, Slovenia, Turkey, United Kingdom and Ukraine and authorised their publication. Furthermore, the Committee noted that the following profiles would be submitted at the next meeting: Azerbaijan, Bosnia and Herzegovina, Croatia, Czech Republic, Finland, France, Greece, Hungary, Italy, Portugal, Switzerland and the European Union.
5. The CODEXTER pursued its exchange of information on best practices on protection and compensation of victims of terrorism and considered the documents submitted by the delegations of Romania, Sweden, Turkey and United Kingdom. Italy volunteered to submit a report on its national system at the next meeting.
6. In accordance with its specific terms of reference, the CODEXTER resumed its consideration of international law and action against terrorism with a view to identifying additional lacunae which could be the subject of future action by the Council of Europe. The Committee agreed to submit to the Committee of Minister the report which appears in document CM(2005)172 Addendum.
7. The CODEXTER examined the Report on assistance to victims and prevention of victimisation, submitted to it by the Group of Specialists on Assistance to Victims and Prevention of Victimisation
(PC-S-AV) and agreed to formulate a number of observations to the PC-S-AV, as they appear in Appendix 2 to the present report. The CODEXTER wished to be associated to any follow-up to the report in the light of its specific terms of reference.
8. The CODEXTER held an exchange of views on developments at national level. In this connection, the CODEXTER noted with satisfaction the measures that some countries have taken in pursuance of the Council of Europe Convention on the Prevention of Terrorism (ETS 196).
Moreover, the CODEXTER took note of the developments in other fora. In this connection, the CODEXTER welcomed the co-operation with the UN and the recent adoption by the UN Security Council of Resolution 1624 (2005) concerning incitement of terrorism which followed the adoption of the Council of Europe Convention on the Prevention of terrorism on which it was inspired. Furthermore, it stressed the importance of pursuing co-operation with the UN Security Council Counter-Terrorism Committee (CTC) Executive Directorate. The CODEXTER took note of developments regarding the OSCE and welcomed the recent initiatives regarding the Council of Europe Convention on the prevention of terrorism, human rights and terrorism, and the use of the Internet for terrorist purposes, in the form of draft decisions of the Ministerial and Permanent Council. Finally, the CODEXTER noted developments within the EU and further welcomed the fact that the expeditious ratification of the Council of Europe Convention on the Prevention of Terrorism was a priority for the EU.
9. The CODEXTER agreed to admit the Organisation of American States (OAS) as observer for the duration of the Committee notwithstanding consideration of this request by the Committee of Ministers, and approved its draft specific terms of reference for 2006-2007 as they appear in Appendix 3 to the present report and decided to submit them to the Committee of Ministers for adoption.
10. The CODEXTER elected Ms Marja Lehto (Finland) and Mr Alexander Zmeyevskiy (Russian Federation) respective as Chair and Vice-Chair for one year, and Mr Zdzislaw Galicki (Poland), Mr Andrea Candrian (Switzerland), Mr Roberto Bellelli (Italy) as members of the Bureau, Mr Galicki and Mr Candrian for two years, and Mr Bellelli for one year.
Moreover, the CODEXTER elected Ms Ann Marie Bolin Pennegaord (Sweden) and Ms Mar Preus (Spain), as representatives of the CODEXTER to the PC-S-AV, and Mr Martin Sorby (Norway) as representative to the
DH-S-TER, notwithstanding adoption of its specific terms of reference.
11. The CODEXTER decided to hold its 10th meeting in Strasbourg 26-28 April to 2006.
1. Opening of the meeting
2. Adoption of the draft agenda and approval of the report of the 8th meeting
3. Statement by the Director General of Legal Affairs of the Council of Europe, Mr Guy DE VEL
4. Decisions of the Committee of Ministers concerning the CODEXTER
5. State of signatures and ratifications of Council of Europe conventions in the field of the fight against terrorism
6. Country profiles on counter-terrorism capacity
7. Protection and compensation of victims of terrorism : Exchange of best practices
8. Identification of lacunae in international law and action against terrorism
9. Information on other activities of the Council of Europe:
a. European Committee on Crime Problems (CDPC) :
i. Recommendations (2005) 09 (protection of witnesses and collaborators of justice) and 10 (special investigation techniques)
ii. Assistance to victims and prevention of victimisation (PC-S-AV)
iii. PC-OC 50th meeting Conference on The Future of Judicial Co-operation: European Conventions and the fight against Criminality
b. European Committee on Legal Co-operation (CDCJ)
c. Steering Committee on Human Rights (CDDH)
d. Other committees: CERI
10. Information on measures taken at national level against terrorism
11. Information concerning work carried out in other international fora
12. Organisation of the future work of the CODEXTER: Draft specific terms of reference for 2006-2007
13. Election of the Chair, Vice-Chair and the Bureau
14. Other business
Opinion of the CODEXTER on the report by the Group of specialists on assistance to victims and prevention of victimisation (PC-S-AV)
on the assistance to victims of terrorism
(document PC-S-AV (2005) 07)
The CODEXTER welcomes the Report submitted to it by the Group of specialists on assistance to victims (PC-S-AV) (document PC-S-AV (2005) 07).
It appreciates the ongoing efforts for drafting a Recommendation (updating Recommendation No. R (87) 21) on assistance to victims in general - which will also be applicable to victims of terrorism - and on the prevention of repeat victimisation.
The CODEXTER wants to stress the importance of ensuring the effective integration of the specific features connected to victims of terrorism into the general approach covering all victims of violent crimes in compliance with the specific terms of reference of the PC-S-AV, while bearing in mind all relevant Council of Europe standards in this field, in particular, the 2005 Council of Europe Convention on the Prevention of Terrorism and the Guidelines on the Protection of Victims of Terrorist Acts.
In connection with the latter, the CODEXTER stresses that the PC-S-AV should consider the extent to which the Report might overlap or go further than the said Guidelines and calls upon the PC-S-AV to ensure that the draft Recommendation will be consistent therewith.
The CODEXTER believes that such a Recommendation should be written in a way which sets forth the main principles and ideas, but which does not enter into too many details.
The CODEXTER wishes to formulate the following specific observations and proposals concerning the Report:
The CODEXTER feels that it may be wise to formulate this section in a language, which is flexible with regard to exactly how solutions are to be found in different countries as long as they are consistent with the main principles and ideas set forth in the Recommendation, in order to ensure compliance by countries.
The CODEXTER fully endorses the suggestion to collect information on best practices. In this connection, it wishes to underline that the CODEXTER has been collecting such information from its very creation and that it pursues that exchange on a regular basis. So far, the reports by Belgium, France, Norway, Romania, Russian Federation, Spain, Sweden, Turkey and the United Kingdom have been submitted and examined (the written contributions are posted at www.coe.int/gmt).
The CODEXTER suggests the publication as soon as possible in the Council of Europe Series Terrorism and Law of such collection of national schemes for the protection or compensation of victims of terrorism, together with the report Victims of terrorism – policies and legislation in Europe (2005) by Dr. Michael Kilchling and other relevant standards, including the Guidelines on the Protection of Victims of Terrorist Acts.
The CODEXTER does not endorse the proposal to undertake research on the question of civil liability of states. However, the CODEXTER refers to its recommendation concerning insurance schemes to cover terrorism related damages in its report (Appendix II to document CODEXTER (2005) 33 – Abriged report of the 9th meeting).
The CODEXTER fails to see the difference between the notions of physical and bodily injury pending further clarification.
The CODEXTER brings the attention of the PC-S-AV to the Guidelines on Victims of Terrorist Acts (Guideline II – Emergency Assistance) which provide that “In order to cover the immediate needs of the victims, States should ensure that appropriate (medical, psychological, social and material) emergency assistance is available free of charge to victims of terrorist acts; (…)”. The CODEXTER further notes that the same kind of assistance may be also provided on the basis of Guideline VII – Compensation, whenever it will be considered appropriate and necessary.
This provision should be reviewed so as to make sure that the level of reimbursement might also be commensurate with the level of prior earning and reflect the actual damage suffered by the claimant by way of lost of earnings.
The CODEXTER endorses the idea contained therein (i.e.: principle of subsidiarity), but stresses that this should be included as a general principle and not limited to the loss of earnings only. Thus, for instance, in relation to paragraph 21 relating to loss of property (where appropriate), the principle should also be applicable (see below).
The CODEXTER wishes to bring the attention of the PC-S-AV to the financial implications for States of the proposals contained in this section and calls upon the PC-S-AV to formulate it in a way commensurate with the financial possibilities of States.
The CODEXTER notes that different systems may be envisaged, for instance, a system of voluntary contributions to a trust fund for the benefit of affected communities.
Paragraphs 26 and 50
See the above observations concerning para. 12. This paragraph overlaps with the Guidelines on the Protection of Victims of Terrorist Acts, Guideline II – Emergency Assistance which provide that “In order to cover the immediate needs of the victims, States should ensure that appropriate (medical, psychological, social and material) emergency assistance is available free of charge to victims of terrorist acts; (…)”.
The CODEXTER reiterates its opinion that the draft Recommendation should not dwell on too many details.
Parts of this Chapter, in particular section 2.1.1, address the general responsibility of States for having crisis management and civil emergency schemes to deal with civil contingencies. This goes beyond the problems related to victims of terrorism.
As far as the protection of victims of terrorism is concerned, the CODEXTER wishes to bring the attention of the PC-S-AV to the Council of Europe Convention on the Prevention of Terrorism which in Article 3, paragraph 2 provides:
2. Each Party shall take such measures as may be necessary to improve and develop the
co-operation among national authorities with a view to preventing terrorist offences and their negative effects by, inter alia:
a. exchanging information;
b. improving the physical protection of persons and facilities;
c. enhancing training and coordination plans for civil emergencies.
The Committee should therefore focus on the traditional aspects of the protection and compensation of victims of terrorism such as those included in Chapter I and Chapter II, section 2.2.
The CODEXTER wishes once again to bring the attention of the PC-S-AV to the above-mentioned Guidelines on the Protection of Victims of Terrorist Acts (see Preambular paragraph h.) and to General Policy Recommendation No. 8 of the European Commission against Racism and Intolerance.
Moreover, paragraph 69 presupposes an existing governmental response plan. The CODEXTER would like to state that also in regard to this Chapter, the considerations under Chapter II should be borne in mind.
The above-mentioned observations and proposals have been formulated on the current state of preparation of the PS-S-AV Report which the CODEXTER does not consider to be final.
* * *
The CODEXTER wishes to be associated to any follow-up to the Report in the light of its specific terms of reference.
Draft specific terms of reference of Committee of Experts on Terrorism (CODEXTER)
1. Name of committee:
Committee of Experts on Terrorism (CODEXTER)
2. Type of committee:
Ad hoc Committee of experts
3. Source of terms of reference:
Committee of Ministers
4. Terms of reference:
Taking into account:
- the standards of the Council of Europe in the fields of Human Rights and the Rule of Law;
- the Declaration adopted by the Committee of Ministers on 12 September 2001 and its Decision of 21 September 2001;
- the Declaration and the conclusions and the final communiqué adopted by the Committee of Ministers respectively at its 110th and 111th Session (Vilnius, 3 May 2002 and Strasbourg, 7 November 2002) and the Communiqué adopted at the 114th Session (Strasbourg, 13-14 May 2004);
- the relevant texts of Parliamentary Assembly and in particular Resolution 1271 (2002) and Recommendation 1550 (2002) on Combating terrorism and respect for Human Rights; Recommendation 1644 (2004) – Terrorism: a threat to democracies; Resolution 1367 (2004) on Bioterrorism: a serious threat for citizens’ health and Recommendation 167 7 (2004) and Resolution 1400 (2004) on the Challenge of terrorism in Council of Europe member states;
- Resolution No. 1 adopted by the European Ministers of Justice at their 24th Conference (Moscow,
4-5 October 2001);
- Resolution No. 1 adopted by the European Ministers of Justice at their 25th Conference (Sofia,
9-10 October 2003);
- Resolution No. 3 adopted by the European Ministers of Justice at their 26th Conference (Helsinki, 7-8 April 2005);
- the Guidelines on Human Rights and the fight against Terrorism adopted by the Committee of Ministers on 11 July 2002 and the Guidelines on the Protection of victims of terrorist acts (2005) adopted by the Committee of Ministers on 2 March 2005;
- the Declaration and Plan of Action adopted at the Third Summit of Heads of State and Government (Warsaw, 16-17 May 2005);
- the reports of the Multidisciplinary Group on International Action against Terrorism (GMT);
- the work of the European Committee on Legal Co-operation (CDCJ), the European Committee on Crime Problems (CDPC) and the Steering Committee on Human Rights (CDDH) and in co-ordination with these Committees;
- the work of other international institutions active in this field including the European Union, the OSCE and the United Nations,
the Committee is instructed:
a. to coordinate the work of all Council of Europe committees as far as the international law and action against terrorism is concerned;
b. to identify possible additional priority activities against terrorism and to make appropriate proposals to the Committee of Ministers, inter alia, on the basis of a report on the implementation of the proposals contained in document CM(2002)148 and on the remaining proposals contained in the Progress Report (document CM(2002)57), as well as on the basis of the reports on existing lacunae in international law or action on the fight against terrorism (documents CODEXTER (2004)5 and CM(2004)61) with a view to intensifying the Council of Europe's action in the field of the fight against terrorism, including preventive measures, while preserving and promoting Human Rights and fundamental freedoms; and
c. to pursue ongoing activities, in particular the drawing up of country profiles on legislative and institutional counter-terrorism capacity and the exchanges of best practice concerning, inter alia, the protection and compensation of victims of terrorism.
5. Membership of the Committee:
a. The governments of all member states are entitled to appoint members with the following desirable qualifications: experts with a detailed knowledge of legal or financial questions concerning terrorism.
b. One representative of each of the following: the European Committee on Legal Co-operation (CDCJ), the European Committee on Crime Problems (CDPC), the Steering Committee for Human Rights (CDDH), and the European Commission for the Efficiency of Justice (CEPEJ).
c. The Council of Europe budget will bear the travelling and subsistence expenses of one participant from each member state and the representatives of the CDCJ, the CDPC, the CDDH and the CEPEJ.
d. The Parliamentary Assembly of the Council of Europe may send a representative to the meetings of the Committee, without the right to vote.
e. The European Commission and Secretariat General of the Council of the European Union may send representatives to the meetings of the Committee without the right to vote or defrayal of expenses.
f. The observer states to the Council of Europe and applicant states for Council of Europe membership may send representatives to the meetings of the Committee without the right to vote or defrayal of expenses.
g. The following observers with the Committee may send representatives to the meetings of the Committee without the right to vote or defrayal of expenses:
Organisation for Economic Co-operation and Development (OECD),
United Nations (UN),
International Criminal Police Organization - Interpol (ICPO-Interpol),
Organization for Security and Co-operation in Europe (OSCE),
Organisation of American States (OAS),
Financial Action Task Force (FATF),
International Committee of the Red Cross (ICRC).
6. Structures and working methods:
The Committee will reconsider its operation upon the entry into force of the Amending Protocol to the European Convention on the Suppression of Terrorism (ETS No.190).
7. Duration of terms of reference:
These terms of reference will expire on 31 December 2007.
Note 1 This document has been classified restricted at the date of issue. Unless the Committee of Ministers decides otherwise, it will be declassified according to the rules set up in Resolution Res(2001)6 on access to Council of Europe documents.